Opinion issued June 10, 2014.




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-12-01148-CR
                            ———————————
                     RODOLFO DOMINGUEZ, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 400th District Court
                           Fort Bend County, Texas
                     Trial Court Case No. 08DCR049886


                                  OPINION

      Rodolfo Dominguez was convicted by a Fort Bend County jury of capital

murder 1 in the shooting death of his ex-girlfriend and her new boyfriend. He was

sentenced by the trial court to life imprisonment without the possibility of parole.


1
      TEX. PENAL CODE ANN. § 19.03 (West Supp. 2013) (defining capital murder).
Dominguez filed a motion for new trial, which was denied. Two of the issues

raised in his denied motion challenged the trial court’s evidentiary rulings.

Dominguez asserts both issues again, here, arguing that the trial court erred in

admitting (1) business records from T-Mobile linking Dominguez’s use of his

mobile phone on the night of the murders to cell towers located near his ex-

girlfriend’s place of work and, later, her boyfriend’s house where the two were

killed; and (2) white Dallas Cowboys Reebok shoes that the ex-girlfriend’s

daughter gave to Dominguez, which had a tread pattern visually similar to a partial

shoe print observed at the crime scene.

      We affirm.

                                   Background

      Rodolfo Dominguez had an off-and-on romantic relationship with Norma

Garcia for several years that ended in February 2008. Thereafter, Garcia began

dating George Leal, who had been a friend and golf companion of Dominguez.

One of Garcia’s sisters, Nora Macias, testified that Garcia and Leal were actively

attempting to hide their relationship from Dominguez, who would be “livid” if he

found out about them. According to Leal’s daughter, Garcia would hide her car in

the garage when she was at Leal’s home to keep the relationship a secret from

Dominguez. Family members testified that it was customary for Leal to drive




                                          2
Garcia home from work, even though Garcia owned her own car, because Garcia

was afraid.

      On the night of the murders, Garcia was working at La Placita restaurant

with one of her other sisters, Nancy Hernandez. Around 9:00 p.m., Hernandez

overheard a phone call Dominguez made to Garcia that was on speakerphone.

According to Hernandez, Dominguez angrily said to Garcia: “You f— b—, you

whore. You’re going to pay for this.” Hernandez immediately disconnected the

phone and told her sister that she should not accept such abuse. Less than one hour

later, Leal picked Garcia up from work. Hernandez talked to Garcia again around

11:00 that night, and Garcia told her sister that they were on their way to Leal’s

house for the evening.

      The next day, on April 5, Leal’s children found Garcia’s and Leal’s bodies

in Leal’s home. Garcia’s body was lying in a pool of blood near the front door.

Leal’s body was near the back door. Both had been shot in the head. The Missouri

City police department investigated. Officer A. Ceballos testified that it appeared

that the door to Leal’s home had been kicked in. He noticed a footprint, waist

level, on the door near the deadbolt. Officer D. Avera also testified about the

footprint and signs of forced entry. Leal’s belongings in the home did not appear to

have been disturbed. In fact, the police found $1,500 in cash in the home.




                                         3
However, Officer Avera testified that the victims’ wallets and mobile phones were

never located.

      During the investigation, Garcia’s sister, Macias, told the police Dominguez

had been sending unpleasant text messages to Garcia after their relationship ended,

and as a result, Garcia had changed her phone number in an effort to avoid him.

Based on the family’s indication that Garcia and Dominguez’s relationship was not

good, the police interviewed Dominguez. He stated that he had spent the entire

evening of April 4 at his family’s bar, except for a brief outing to buy cigarettes.

He also claimed that all of his telephone communications with Garcia were

friendly.

      In an effort to further investigate the phone calls and texts Dominguez made

to Garcia before her death, the police requested phone data from the parties’

mobile phone service providers, including T-Mobile. According to Detective S.

Glave’s review of the records, Dominguez called or texted Garcia 138 times in a

20-day period in March 2008, after the two had ended their relationship.

      Detective Glave also testified about calls to and from Dominguez’s phone on

the night of the murders, April 4, as evidenced by the data received from T-Mobile.

According to Glave, Dominguez made 13 calls between 9:00 p.m. and 3:00 a.m.,

spanning the time just before Garcia left work with Leal and through the likely

time that the two were murdered. During the police investigation, Dominguez



                                         4
admitted that he made these calls, although he claimed he had been at the bar

during those times.

      Detective Glave used data contained in T-Mobile’s records to determine the

location of the cell towers that were connected to Dominguez’s phone when he

used his mobile phone that evening. Detective Glave mapped the tower locations

based on data received from T-Mobile and compared that information to the

physical locations of La Placita restaurant where Leal picked up Garcia from work,

Leal’s home where the murders happened, and the bar where Dominguez claimed

to have been that night. These three locations are many miles apart with multiple

cell towers located between them.

      According to Detective Glave’s analysis, on the night of the murders,

Dominguez’s phone connected with cell towers near all three locations: around

9:00 p.m. his phone connected with a cell tower near the bar; around 10:00 p.m.,

which is when Garcia left work with Leal, Dominguez’s phone connected to a

tower near La Placita restaurant; the phone connected to a cell tower near the bar

again around 11:15 p.m.; subsequently, it connected to a cell tower near Leal’s

home around 11:30 p.m.; then to a cell tower near Leal’s home, again, just after

midnight; finally, Dominguez’s phone connected with cell towers near the bar

between 12:30 a.m. and 3:00 a.m. Over Dominguez’s objection, the phone records

were admitted as evidence while Detective Glave testified.



                                        5
      Houston Police Department Officer M. Rone, who testified that he was

assigned to the Communications Intelligence Division, was permitted to offer

expert testimony—again, over Dominguez’s objections—about his analysis of

Dominguez’s mobile phone records. Officer Rone testified about his training and

experience interpreting phone records, and stated that experts in his field rely on

cell tower data to determine which cell tower made a connection with a mobile

phone at the beginning and ending of each call.

      Officer Rone explained that a mobile phone will attempt to connect to the

closest cell tower that is available to handle a phone call. The call can be passed on

to other towers as the caller traverses an area during a phone conversation. The

phone companies keep data specifying which tower was in contact with the mobile

phone when the call began and when it ended. Officer Rone admitted that this data

cannot tell the investigators precisely where the caller was located when he made

his call. However, the phones are programmed to try to connect to the closest

tower and, based on which tower was accessed, the phone can be said to be “within

some proximity” to the tower to which it was connected. To explain the forced

proximity of mobile phones and cell towers with which they connect, Officer Rone

explained that a call made in Missouri City would not access a cell tower in

downtown Houston. Instead, it would seek to connect to the closest tower, and if

that tower was unavailable, it would try to connect to the next closest tower.



                                          6
      Officer Rone interpreted the T-Mobile records and testified that Dominguez

repeatedly used his mobile phone in areas of town that were away from the bar

where Dominguez claimed he was located that night. Instead, the records showed

him close to La Placita near the time that Garcia left with Leal and close to Leal’s

home near the time that the murders occurred. The data contained in the phone

records indicated to the police that Dominguez’s alibi was invalid.

      The other evidence linking Dominguez to the murder scene was a shoe print

on the door of Leal’s home. At first, the police analyzed a pair of boots belonging

to Dominguez, but they did not match the print. It was not until the following year

that the police came into possession of Dominguez’s Dallas Cowboys Reebok

shoes, which are white with the word “Cowboys” written on the side in blue print.

      Dominguez had been living with Garcia’s daughter, Estella, at the time of

the murders. In the beginning of the police investigation, Estella told the police that

Dominguez often wore a pair of Dallas Cowboys Reebok shoes that she had given

him for Christmas four months earlier, but the police were unable to locate them. It

was not until several months later that Estella found the shoes. She testified about

the events leading up to their discovery.

      According to Estella, several people, including Dominguez, planned to drive

to San Antonio on the afternoon of April 5th—the day after the murders. When

they packed for the trip, Dominguez put some of his belongings into her trunk.



                                            7
Estella’s husband testified that he saw Dominguez’s shoes being placed in Estella’s

trunk on April 5th as they packed for their trip to San Antonio. Before they reached

San Antonio, Estella received a phone call indicating there was something wrong,

at which point they abandoned the trip and returned to Houston.

       A couple months later, she found the Dallas Cowboys shoes still in her

trunk. Realizing that the police were looking for the shoes that she had already

described to them, she contacted the police department and informed them that she

had found the shoes. Several months after that, the police retrieved the shoes from

her.

       According to a forensic scientist at the Texas Department of Public Safety

Crime Lab, the herringbone pattern on the sole of the shoes Estella gave to the

police was similar to the pattern left on Leal’s door. Due to the poor quality of the

photograph of the door, she was unable to determine whether there was an exact

match between the photographed print and the shoes; her testimony was limited to

the conclusion that the zigzag patterns on the door and on the sole of the shoes

were “visually similar.”

       Dominguez objected at trial to the admissibility of the shoes, arguing that the

chain of custody was inadequate, due to the length of time that passed between the

date of the murders and the date the shoes were given to the police, as well as the

multiple times the shoes changed location while still in Estella’s possession,



                                          8
including her change in residence. The trial court admitted the challenged

evidence.

       The jury found Dominguez guilty of capital murder. And the trial court

sentenced him to life imprisonment without the possibility of parole. Dominguez

filed a motion for new trial which was denied. He timely appealed, arguing that the

trial court erred in admitting the phone records and the shoes into evidence.

                               Standard of Review

       The standard of review for a trial court’s admission or exclusion of evidence

is abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); Spradlin v.

State, 100 S.W.3d 372, 381 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A trial

court abuses its discretion if its decision is arbitrary, unreasonable, and without

reference to guiding principles. See Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1990). An abuse of discretion does not occur merely because the

appellate court would have decided a discretionary matter in a different way than

the trial court. See id.

       A trial court must be given wide latitude in its decision to admit or exclude

evidence. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). As long as

the trial court’s evidentiary ruling is at least within the zone of reasonable

disagreement, an appellate court may not disturb it. Ellis v. State, 99 S.W.3d 783,

788 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). There should be “reluctance



                                          9
on the part of an appellate court to reverse trial court decisions which admit or

exclude evidence.” Montgomery, 810 S.W.2d at 378; Harris v. State, 152 S.W.3d

786, 793 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).

      An appellate court must uphold the trial court’s evidentiary ruling if there is

any legitimate basis for doing so. Owens-Corning Fiberglas Corp. v. Malone, 972

S.W.2d 35, 43 (Tex. 1998); Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex.

App.—Houston [14th Dist.] 2006, pet. denied) (“We must uphold the trial court’s

evidentiary ruling if there is any legitimate basis for doing so, even if that ground

was not raised below.”).

                           T-Mobile Business Records

      In addition to pre-trial challenges to Officer Rone’s expertise interpreting

phone records, Dominguez argued that the T-Mobile records should be held

inadmissible because the affidavit accompanying the cell tower records did not

comply with Texas Rule of Evidence 902(10). Specifically, Dominguez

complained that the T-Mobile document authenticating the cell tower records

“does not indicate a seal or authentication of the office [of the person to whom the

oath was given] on its face.”

      Properly authenticated records of regularly conducted business activity are

admissible as an exception to the hearsay rule. TEX. R. EVID. 803(6) (business

records exception). Rule 902(10) of the Texas Rules of Evidence provides a cost-



                                         10
effective method of authenticating business records; it allows business records to

be authenticated by an affidavit that substantially conforms to the model affidavit

provided in the rule, rather than by live testimony. TEX. R. EVID. 902(10)(b). We

need not determine whether the letter meets the requirements of an affidavit

because this authenticating document meets the requirements of an alternative

method of verification: an unsworn declaration.

      Section 132.001 of the Texas Civil Practice and Remedies Code permits a

party to use an unsworn declaration in lieu of an affidavit that is “required by

statute or required by a rule, order, or requirement adopted as provided by law.”

TEX. CIV. PRAC. & REM. CODE ANN. § 132.001(a) (West Supp. 2013); Tex. Dep’t

of Pub. Safety v. Carauna, 363 S.W.3d 558, 564 (Tex. 2012) (noting that, by

statute, unsworn declarations may be used in lieu of oaths or affidavits as long as

they are subscribed as true “under penalty of perjury”).                Before its 2011

amendment, the Texas unsworn declaration provision was available only to

inmates; however, the statute was enlarged in 2011 to allow any person to satisfy a

legal requirement of an affidavit with an unsworn declaration. 2 Compare TEX. CIV.



2
      The statute provides that an unsworn declaration cannot meet the requirement of
      an affidavit in limited circumstances, involving “a lien required to be filed with a
      county clerk, an instrument concerning real or personal property required to be
      filed with a county clerk, or an oath of office or an oath required to be taken before
      a specified official other than a notary public.” TEX. CIV. PRAC. & REM. CODE
      ANN. § 132.001(b) (West Supp. 2013). However, none of those exceptions applies

                                            11
PRAC. & REM. CODE ANN. §§ 132.001–.002 (Acts 1987, 70th Leg., ch. 1049

(enacted 1987)) with TEX. CIV. PRAC. & REM. CODE ANN. § 132.001 (Acts 2011,

82nd Leg., ch. 847, amended by Acts 2013, 83rd Leg., ch. 946. Courts have held

that the provisions concerning unsworn declarations “apply in criminal as well as

civil proceedings.” McMillan v. State, 769 S.W.2d 675, 677 (Tex. App.—Dallas

1989, pet. ref’d) (citing Owens v. State, 763 S.W.2d 489, 491 (Tex. App.—Dallas

1988, pet. ref’d) (holding that unsworn declaration provision found in Civil

Practice and Remedies Code applied to permit use of unsworn declaration in

support of criminal defendant’s motion for new trial)); Ex parte Johnson, 811

S.W.2d 93, 97 (Tex. Crim. App. 1991) (permitting use of unsworn declaration, as

provided in Civil Practice and Remedies Code, to verify criminal defendant’s

statements in habeas corpus proceeding, noting legislative history, and stating that

Civil Practice and Remedies Code provision on unsworn declarations is “an act

relating to . . . the manner in which defendants are sentenced, confined, and

released from confinement”).

      The change to the unsworn declaration statute to allow non-inmates to use

unsworn declarations aligned Texas law with existing federal law. See 28 U.S.C.A.

§ 1746 (2003) (“Wherever, under any law of the United States or under any rule,

regulation, order, or requirement made pursuant to law, any matter is required or

      to verification of business records, where an oath may be taken before a notary
      public. TEX. R. EVID. 902(10)(b).

                                         12
permitted to be . . . proved by the sworn declaration . . . oath, or affidavit . . . such

matter may, with like force and effect, be . . . proved by the unsworn declaration

. . . of such person which is subscribed by him, as true under penalty of perjury

. . . .”); DIRECTV, Inc. v. Budden, 420 F. 3d 521, 530 (5th Cir. 2005) (recognizing

as “settled rule” that declarations satisfy affidavit requirement if made under

penalty of perjury and verified as true and correct); Pitter v. Cmty. Imaging

Partners, Inc., 735 F. Supp. 2d 379, 383 & n.1 (D. Md. 2010) (holding that

unnotarized affidavit executed “under penalty of perjury” qualifies as unsworn

declaration and summary judgment evidence).

      The inclusion of the phrase “under penalty of perjury” is the key to allowing

an unsworn declaration to replace an affidavit. See Bahm v. State, 219 S.W.3d 391,

393–94 (Tex. Crim. App. 2007) (applying prior version of statute that limited use

of unsworn declarations to inmates); Carauna, 363 S.W.3d at 564 (stating that

“[t]he verity of a declaration is thus assured by the criminal penalties for perjury.”).

“Thus, the inclusion of the phrase ‘under penalty of perjury’ is significant in itself,

carrying serious legal consequences . . . .” Bahm, 219 S.W.3d at 394. Under Texas

Penal Code section 37.02, a person who makes a false unsworn declaration

commits a Class A misdemeanor. TEX. PENAL CODE ANN. § 37.02(b) (West 2011).

      The letter from T-Mobile employee, Jonathan Mendillo, accompanying the

cell tower records contains all of the declarations required to establish that the



                                           13
records were prepared through T-Mobile’s regularly conducted activities, as

required by rule 803(6). TEX. R. EVID. 803(6) (business record exception).

Mendillo states in the letter that he “certif[ies] on penalty of criminal punishment

for false statement or false attestation” that his statements are true and accurate to

the best of his knowledge and belief. The letter, therefore, constitutes an unsworn

declaration under section 132.001 of the Civil Practice and Remedies Code, which

is an alternative method of verification to Rule 902(10).

      We conclude that the letter from Mendillo meets the statutory requirements

of Rule 803(6) and section 132.001 of the Texas Civil Practice and Remedies Code

to prevent the T-Mobile records from being excluded as hearsay. See Carauna, 363

S.W.3d at 564 (current version of law); cf. Bahm v. State, 219 S.W.3d at 394

(rejecting argument that declaration including phrase “according to my belief”

failed to substantially comply with statute where declaration also said “under

penalty of perjury”).

      Accordingly, the trial court did not abuse its discretion in admitting the T-

Mobile records. We, therefore, overrule Dominguez’s first issue.

                              Dallas Cowboys Shoes

      In his second issue, Dominguez contends that the trial court erred by

admitting the shoes into evidence. Specifically, Dominguez argues that “the State

did not demonstrate that the shoes presented at trial were the same pair owned by



                                         14
[Dominguez],” and that the “chain of custody was neither accounted for nor

reliable.” The State responds that the chain of custody was adequately established.

      Trial courts are given broad discretion in ruling on admissibility of evidence.

Druery v. State, 225 S.W.3d 491, 503 (Tex. Crim. App. 2007). Texas Rule of

Evidence 901(a) provides that “[t]he requirement of authentication or identification

as a condition precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims.” TEX. R.

EVID. 901(a). This rule “does not require the State to prove anything.” Garner v.

State, 939 S.W.2d 802, 805 (Tex. App.—Fort Worth 1997, pet. ref’d); see also

Silva v. State, 989 S.W.2d 64, 67–68 (Tex. App.—San Antonio 1998, pet. ref’d)

(same). Instead, the rule “requires only a showing that satisfies the trial court that

the matter in question is what the State claims; once that showing is made, the

exhibit is admissible.” Garner, 939 S.W.2d at 805; see Druery, 225 S.W.3d at 502

(holding that trial court acts within discretion in admitting evidence “where he or

she reasonably believes that a reasonable juror could find that the evidence has

been authenticated or identified.”). So long as the trial court’s ruling admitting the

evidence is within the zone of reasonable disagreement, we will conclude that the

trial court acted within its discretion to admit the evidence. Tillman v. State, 354

S.W.3d 425, 435 (Tex. Crim. App. 2011).




                                         15
      At trial, defense counsel objected to the introduction of the shoes, arguing

that the State did not adequately establish the chain of custody and that

identification likewise was inadequate.

      Evidence may be authenticated or identified by different methods, including

testimony from a witness with knowledge that an item is what it is claimed to be.

TEX. R. EVID. 901(b)(1); Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d); Dossett v. State, 216 S.W.3d 7, 17 (Tex.

App.—San Antonio 2006, pet. ref’d). Articles that are easily identifiable and

substantially unchanged normally do not require chain of custody evidence. Haq v.

State, No. 01-11-01057-CR, 2013 WL 1890260, *5 (Tex. App.—Houston [1st

Dist.] May 7, 2013, pet. ref’d). “If the item has distinct or unique characteristics, a

witness may authenticate it by testifying that he or she has previously seen the item

at the relevant time and place and that the witness recognizes it by its distinctive

characteristics.” Id.; Hartsfield v. State, 200 S.W.3d 813, 817–18 (Tex. App.—

Texarkana 2006, pet. ref’d); Jackson v. State, 968 S.W.2d 495, 500 (Tex. App.—

Texarkana 1998, pet. ref’d).

      In Jackson, the defendant was charged with sexually assaulting his step-

daughter. 968 S.W.2d at 497. A search of his residence uncovered certain items,

including blood-stained jeans. Id. at 498. The jeans were identified by the

defendant’s wife, who had personal knowledge that Jackson was wearing them



                                          16
earlier in the day that the assault occurred. Id. at 500. Even though the defendant

objected to a proper chain of custody concerning the jeans, his wife’s identification

of the jeans was sufficient to show the jeans were what the State claimed—his—

regardless of a later-acquired blood stain that she had no ability to identify. See id.

at 500.

      Likewise, in Hartsfield, a witness sought to identify a box as the one that

had been at a crime scene. 200 S.W.3d at 819. Relying on Jackson, the appellate

court concluded that the box could be authenticated through witness testimony that

the witness recognized it as the box from the restaurant where victims had been

abducted. See id. at 818 (citing Jackson, 968 S.W.2d at 495, 500). In both cases

chain of custody evidence was unnecessary; witness identification of the evidence

was sufficient for admissibility. See Jackson, 968 S.W.2d at 500; Hartsfield, 200

S.W.3d at 818. Once evidence is properly authenticated, questions concerning its

care and custody affect the weight of the evidence, not its admissibility. See

Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997); Alvarez v. State,

857 S.W.2d 143, 147 (Tex. App.—Corpus Christi 1993, pet. ref’d).

      Here, Garcia’s daughter testified that she gave Dominguez a pair of white

Dallas Cowboys Reebok shoes for Christmas four months before the murders and

that she had seen him wear the shoes often. The shoes were white with the word




                                          17
“Cowboys” written on the sides in blue. She specifically stated that the pair of

shoes she bought him was size 11.

      Garcia’s son-in-law testified that he saw the Dallas Cowboys Reebok shoes

being placed into the trunk before they left on their trip to San Antonio the day

after the murders. Garcia’s daughter testified that she found the shoes in her trunk

several months after the abandoned trip. When she found the shoes, she placed

them in a white plastic bag and stored them in a seldom used closet in her

apartment. She notified the police that she found the shoes and stored them until

the police picked them up several months later.

      At trial, Garcia’s daughter viewed the shoes. She testified that the white

plastic bag in which they were presented at trial was the same bag she had used to

store them. She further testified that she could identify the shoes as being the pair

of white Dallas Cowboys Reebok shoes that she bought for Dominguez and that

she had seen him wear often. Finally, she confirmed that the shoes in evidence

were a size 11—the same sized shoe that she had purchased.

      This testimony was sufficient to permit the trial court to reasonably believe

that a jury reasonably could find that the exhibit was what the State claimed it to

be—the shoes Dominguez owned. TEX. R. EVID. 901; see Druery, 225 S.W.3d at

502; Jackson, 968 S.W.2d at 500 (permitting witness to authenticate exhibit by

testifying that she saw exhibit at earlier time and recognized it). To the extent



                                         18
Dominguez complains that the shoes were kept in the daughter’s apartment for

several months before being given to the police, that the daughter moved in the

interim, or that the daughter was mistaken in her identification, those matters go to

the weight of the evidence, not to its admissibility. See Lagrone, 942 S.W.2d at

617; Alvarez, 857 S.W.2d at 147; Hartsfield, 200 S.W.3d at 818. We conclude that

the trial court did not abuse its discretion in admitting the shoes into evidence.

      We overrule Dominguez’s second issue.

                                     Conclusion

      Having overruled both of Dominguez’s issues, we affirm the trial court’s

judgment.



                                               Harvey Brown
                                               Justice

Panel consists of Justices Keyes, Bland, and Brown.

Publish. TEX. R. APP. P. 47.2(b).




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