                                                                                ACCEPTED
                                                                            01-15-00239-CR
                                                                 FIRST COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                      9/23/2015 12:46:39 AM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK

                    No. 01-15-00239-CR
                    No. 01-15-00240-CR
                                                      FILED IN
     ______________________________________________
                                             1st COURT OF APPEALS
                                                 HOUSTON, TEXAS
                                                9/23/2015 12:46:39 AM
                         IN THE              CHRISTOPHER A. PRINE
             COURT OF APPEALS FOR THE               Clerk
               FIRST DISTRICT OF TEXAS
                     AT HOUSTON
     ______________________________________________

                 OSCAR RENE RIVERA

                           VS.

                 THE STATE OF TEXAS
     ______________________________________________

           Appealed from the 185th District Court
                  of Harris County, Texas
             Cause Numbers 1423701 & 1423702
     ______________________________________________

                  APPELLANT’S BRIEF
     ______________________________________________


                             RANDALL J. AYERS
                             Attorney for Appellant
                             State Bar No. 01465950
                             P.O. Box 1569
                             Houston, Texas 77251-1569
                             rjayerslaw@comcast.net (email)
                             (281) 493-6333 (telephone)
                             (281) 493-9609 (fax)




ORAL ARGUMENT WAIVED


                            1
                 IDENTIFICATION OF THE PARTIES

        Pursuant to Tex. R. App. P. 38.1(a), a complete list of the names of
all interested parties is provided below:

      1.     OSCAR RENE RIVERA – Appellant
             TDCJ Inmate #02018188
             Garza West Unit
             4250 Highway 202
             Beeville, Texas 78102-8997

      2.     PATRICK RUZZO – Trial Counsel for Appellant
             1900 North Loop West, Suite 500
             Houston, Texas 77018-8120

      3.     RANDALL J. AYERS – Appellate Counsel for Appellant
             P.O. Box 1569
             Houston, Texas 77251-1569

      4.     CHRISTOPHER HANDLEY – Trial Counsel for State
             Harris County District Attorney’s Office
             1201 Franklin, Suite 600
             Houston, Texas 77002-1997

      5.     ALAN CURRY – Chief Appellate Counsel for State
             Harris County District Attorney’s Office
             1201 Franklin, Suite 600
             Houston, Texas 77002-1997

      6.     HONORABLE SUSAN BAETZ BROWN – Trial Judge
             185th District Court
             1201 Franklin, 17th Floor
             Houston, Texas 77002-1913




                                      2
                TABLE OF CONTENTS
                                              Page

IDENTIFICATION OF THE PARTIES ………………………..….     2

INDEX OF AUTHORITIES ……………………………………..…          4

STATEMENT REGARDING ORAL ARGUMENT ………………        5

STATEMENT OF THE CASE …………………………………..…          5

ISSUES PRESENTED FOR REVIEW …………………………….        6

SUMMARY STATEMENT OF FACTS …………………………… 6

SUMMARY OF THE ARGUMENT ………………………………            7

POINT OF ERROR ONE ………………………………………….. 8
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
CHALLENGES FOR CAUSE AGAINST FOUR SPECIFIED
MEMBERS OF THE JURY VENIRE WHO INDICATED THAT
THEY WOULD CONSIDER A DEFENDANT’S FAILURE TO
TESTIFY AS EVIDENCE AGAINST HIM AT TRIAL AND AGAINST
THREE SPECIFIED MEMBERS OF THE JURY VENIRE WHO
INDICATED THAT THEY COULD NOT CONSIDER ASSESSING
PROBATION IN AN APPROPRIATE CASE.

POINT OF ERROR TWO ………………………………………….. 11
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A CELL
PHONE PURSUANT TO A SEARCH WARRANT WHERE THE
AFFIDAVIT SUPPORTING THE SEARCH WARRANT FAILED TO
ESTABLISH PROBABLE CAUSE.

CONCLUSION AND PRAYER …..………………………………           15

CERTIFICATE OF SERVICE …………………………………..…         16

CERTIFICATE OF COMPLIANCE ……………………………….         16



                         3
                       INDEX OF AUTHORITIES
                                   Cases                      Page
Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010) ……………. 9

Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995) ……………… 10

Cordova v. State, 733 S.W.2d 175 (Tex. Crim. App. 1987) …..…………   9

Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005) ……………… 12

Evans v. State, 530 S.W.2d 932 (Tex. Crim. App. 1975) ……………….. 13

Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992) ……………….. 10

Jaben v. United States, 381 U.S. 214 (1965) …………………………… 13

Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990) ……………. 13

Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1995) …………. 13

Montoya v. State, 810 S.W.2d 160 (Tex. Crim. App. 1989) …………….    9

Pierce v. State, 696 S.W.2d 899 (Tex. Crim. App. 1985) ……………….. 9

Reese v. State, 712 S.W.2d 131 (Tex. Crim. App. 1986) ………………... 12

State v. McLain, 337 S.W.3d 268 (Tex. Crim. App. 2011) ……………… 12

                Constitutional Provisions, Statutes and Rules
Tex. Code Crim. Proc. Art. 1.06 ………………..………………………. 12

Tex. Code Crim. Proc. 18.01(b) ………………………………………… 12

Tex. Code Crim. Proc. Art. 35.16(c)(2) ……..……….…………………. 9

Tex. Const. Art. I §9 …………………………………………………..… 12

Tex. R. App. Proc. 38.1(a) …...………………………………………….                  2

Tex. R. App. Proc. 39.7 ………………………………………………… 5

U.S. Const., Amend. IV …………………………………………………. 12



                                   4
           STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Tex. R. App. P. 39.7, Appellant waives oral argument.


                       STATEMENT OF THE CASE

      Appellant was charged in separate indictments with the offenses of

indecency with a child and sexual assault of a child. (CR-A 14; CR-B 17)1.

Appellant pled not guilty and proceeded to trial. (CR-A 121-122, 135; CR-B

127-128, 136; RR-V3 6-7). The trial jury found Appellant guilty in both

indictments, and subsequently assessed Appellant’s punishment at ten years

probation in the indecency with a child case and eight years in prison in the

sexual assault of a child case. (CR-A 100, 119, 121-122, 136-137; CR-B

110, 124, 127-128, 137-138; RR-V4 92-95; RR-V5 6-7). The trial court

granted the State’s motion to cumulate the two sentences. (CR-A 108, 122,

137; CR-B 138; RR-V5 9-10). Appellant filed timely written notice of

appeal. (CR-A 129-130, 137; CR-B 130-131, 138; RR-V5 8).




1
 CR-A = Clerk’s Record, Volume I of I in Cause No. 1423701; CR-B = Clerk’s Record,
Volume I of I in Cause No. 1423702; RR = Reporter’s Record, Volumes 1 through 6.

                                        5
                      ISSUES PRESENTED FOR REVIEW

      Did the trial court commit error when it denied Appellant’s challenges

for cause against members of the jury venire who were biased against

applicable law that Appellant was entitled to rely upon at trial, specifically

Appellant’s right not to testify at trial, and his right to have the jury consider

the full range of punishment, including probation?

      Did the trial court commit error when it denied Appellant’s motion to

suppress evidence recovered in a search of a cell phone?




                  SUMMARY STATEMENT OF FACTS

      Appellant was a childhood friend of the father of the complainant, and

temporarily lived with the complainant’s family over a period of several

months. (RR-V3 10-15, 32-34; RR-V4 7-14). The complainant testified that

beginning when she was 15 years old, she engaged in a series of voluntary

and consensual sexual activities with Appellant. (RR-V3 15, 37, 72-73; RR-

V4 7-12, 17-24, 26-30, 65). Appellant was 38 years old at the time. (RR-V3

72-73; RR-V4 63-64). The complainant testified to several incidents of

sexual activity with Appellant that took place over a period of several

months, and included acts of both oral sex and sexual intercourse. (RR-V4



                                        6
17-24, 26-35, 44-52). The complainant’s father eventually discovered what

was going on between Appellant and the complainant, whereupon he kicked

Appellant out of his residence and called the police, who began an

investigation that eventually resulted in the filing of charges against

Appellant. (RR-V3 16-19, 26, 38, 96-97, 104; RR-V4 35-40). The

complainant testified that her relationship with Appellant continued even

after her parents had kicked Appellant out and notified the police. (RR-V4

40-61). The complainant testified that she continued to meet Appellant at

motels where they would engage in oral sex and sexual intercourse, and that

this continued until her parents caught her talking to Appellant on a cell

phone that he had given to her. (RR-V3 50-53; RR-V4 40-55, 58-61).

                   SUMMARY OF THE ARGUMENT

      The trial court erred when it denied Appellant’s challenges for cause

against seven specific members of the jury venire where the record

established by a preponderance of the evidence that each of the seven

potential jurors was biased or prejudice against applicable law upon which

Appellant was entitled to rely at trial, and further when it denied Appellant’s

motion to suppress evidence obtained from a search of a cell phone

conducted pursuant to a search warrant that failed to establish probable

cause to support the search.



                                      7
                         POINT OF ERROR ONE

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
CHALLENGES FOR CAUSE AGAINST FOUR SPECIFIED
MEMBERS OF THE JURY VENIRE WHO INDICATED THAT
THEY WOULD CONSIDER A DEFENDANT’S FAILURE TO
TESTIFY AS EVIDENCE AGAINST HIM AT TRIAL AND AGAINST
THREE SPECIFIED MEMBERS OF THE JURY VENIRE WHO
INDICATED THAT THEY COULD NOT CONSIDER ASSESSING
PROBATION IN AN APPROPRIATE CASE.

        RELEVANT FACTS, AUTHORITIES & ARGUMENT

      In Appellant’s case, at the conclusion of voir dire, the attorneys and

the trial judge engaged in a bench conference regarding challenges for cause

(RR-V2 116-149). After allowing for duplicate challenges excused by

agreement, the trial court took up the remaining non-agreed challenges for

cause. (RR-V2 116-147). The trial court summarily granted all five of the

challenges for cause made by the State. (RR-V2 117). Allowing for the

duplicate challenges excused by agreement, Appellant’s trial counsel had

lodged challenges for cause against 14 venire members, but the trial court

denied seven of those challenges (specifically, jurors #4, #28, #38, #40, #42,

#54, and #57). (RR-V2 118-147). Appellant’s trial counsel then requested

seven additional peremptory challenges, which the trial court denied. (RR-

V2 147-148). Appellant’s trial attorney subsequently used all ten of his

allotted peremptory strikes, including strikes on the seven specific jurors for

which the trial court had denied his challenges for cause. (CR-A 81-83; CR-

                                      8
B 89-91). When the jury was seated for trial, Appellant’s attorney objected

to the jury as seated, and identified nine objectionable jurors on the panel on

whom he would have used peremptory strikes had he not had to use them on

the jurors for which his challenges for cause were denied by the trial court

(specifically, jurors #10, #21, #23, #24, #25, #26, #32, #33, and #39). (RR-

V2 148-149). The trial court overruled Appellant’s objection. (RR-V2 149).

      A jury venire member is subject to removal via a challenge for cause

when he has a bias or prejudice against any of the law applicable to the case

upon which the defendant is entitled to rely, either as a defense to some

phase of the offense for which the defendant is being prosecuted or as

mitigation thereof or of the punishment therefore. Cordova v. State, 733

S.W.2d 175 (Tex. Crim. App. 1987); citing Tex. Code Crim. Proc. Art.

35.16(c)(2). A venire member is subject to removal for cause if he would

consider the defendant’s failure to testify at trial as evidence against the

defendant in determining guilt. Montoya v. State, 810 S.W.2d 160 (Tex.

Crim. App. 1989). A venire member is also subject to removal for cause if

he is unable to consider the full range of punishment, including the

minimum, and more specifically probation for an eligible defendant.

Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010); Pierce v. State,

696 S.W.2d 899 (Tex. Crim. App. 1985). The burden of demonstrating that a



                                      9
venire member should be excused for cause is on the party urging the

excusal. Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995). The

burden is only by a preponderance of the evidence. Fuller v. State, 829

S.W.2d 191 (Tex. Crim. App. 1992).

      During his voir dire examination of the jury venire, Appellant’s trial

attorney asked the venire members if any of them would consider a

defendant’s failure to testify at trial as evidence of his guilt. (RR-V2 90-99).

Several venire members indicated that they would do so, including juror #4

(RR-V2 90-92), juror #38 (RR-V2 94-95), juror #40 (RR-V2 95-96), and

juror #42 (RR-V2 96-97). These four venire members statements on the

record clearly established by a preponderance of the evidence that they were

biased against applicable law upon which Appellant was entitled to rely,

specifically his constitutional right not to testify at trial. Appellant’s trial

attorney properly challenged these four venire members for cause on that

basis, and it was error for the trial court to deny those challenges. (RR-V2

118-120, 126-134).

      Appellant’s trial attorney also asked the venire members during voir

dire if they could consider the full range of available punishment, including

probation in the appropriate case. (RR-V2 108-112). Several venire

members indicated that they could not consider assessing probation,



                                      10
including juror #28 (RR-V2 110), juror #54 (RR-V2 112), and juror #57

(RR-V2 112). Again, the record clearly shows by a preponderance of the

evidence that these three jurors were biased against applicable law upon

which Appellant was entitled to rely, specifically his right to have

consideration of the full range of punishment, including probation.

Appellant’s trial attorney properly challenged these three venire members

for cause on that basis, and it was error for the trial court to deny those

challenges. (RR-V2 122-126, 138-146).

                        POINT OF ERROR TWO

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A CELL
PHONE PURSUANT TO A SEARCH WARRANT WHERE THE
AFFIDAVIT SUPPORTING THE SEARCH WARRANT FAILED TO
ESTABLISH PROBABLE CAUSE.

        RELEVANT FACTS, AUTHORITIES & ARGUMENT

      At Appellant’s trial, the State offered into evidence numerous

photographs and text messages that were taken from a cell phone that

belonged to Appellant and which was allegedly left at the complainant’s

residence and turned over to the police by her mother. (RR-V3 39-41, 50,

78-80, 85-99; State’s Exhibits 5 through 15, 17, 18, & 21). These photos and

text messages were obtained pursuant to a search warrant obtained by the

investigating officer. (RR-V3 60-66, 78-87, State’s Exhibits 19 & 20).



                                    11
Appellant’s attorney filed a motion to suppress this evidence alleging that

the affidavit supporting the search warrant did not contain sufficient credible

facts to establish probable cause, and that the search warrant was therefore

deficient. (CR-B 95-99; RR-V3 54-56). Appellant’s attorney urged his

motion to suppress and objected to the admission of the evidence obtained

pursuant to the search warrant several times during Appellant’s trial, but the

trial court denied his motion and overruled his subsequent objections. (CR-B

99, 135; RR-V3 54-56, 81-82, 87-89).

      A search or seizure must be supported by probable cause. U.S. Const.,

Amend. IV; Tex. Const. Art. I §9; Tex. Code Crim. Proc. Art. 1.06;

Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005). A search warrant

may not be issued without sufficient credible evidence establishing probable

cause for the search being presented under oath or affirmation to a

magistrate. Tex. Code Crim. Proc. Art. 18.01(b); Reese v. State, 712

S.W.2d 131 (Tex. Crim. App. 1986). In determining if there is probable

cause to support the issuance of a search warrant, the inquiry is limited to the

four corners of the affidavit supporting the search warrant. State v. McLain,

337 S.W.3d 268 (Tex. Crim. App. 2011). The credibility and reliability of

not just the affiant but also his sources of information are part of the totality

of the circumstances that must be considered in determining if probable



                                       12
cause has been established. Jaben v. United States, 381 U.S. 214 (1965);

Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990). An affidavit

does not establish probable cause for the search when it contains no

recitation as to how the affiant learned or came by the information he relates

in support of probable cause. Matamoros v. State, 901 S.W.2d 470 (Tex.

Crim. App. 1995); Evans v. State, 530 S.W.2d 932 (Tex. Crim. App. 1975).

      In Appellant’s case, an examination confined to the four corners of the

affidavit in support of the search warrant shows that it does not establish

sufficient probable cause to search the cell phone. It does not establish the

credibility and reliability of the sole source of the affiant’s information about

the cell phone, specifically the complainant’s mother, Isela Hearn. The

affidavit merely states that Ms. Hearn represented that the cell phone was a

gift from Appellant to the complainant, but contains no recitation of how

Ms. Hearn learned that information or knows it to be factually true. The

affidavit states that “Affiant was told that there were messages sent via the

Cellular phone from the DEFENDANT [Appellant] to the COMPLAINANT

which were recently intercepted by Ms. Hearn”, but again contains no

recitation of how the affiant came by that information – who told the affiant,

and how does that person know it to be true? This particular assertion by the

affiant is especially critical and goes to the very heart of the matter, because



                                       13
absent credible and reliable information establishing the presence of such

evidence in the cell phone – something to connect Appellant to the phone

and to the complainant – there would be no probable cause to search it. And

this affidavit presents nothing more on this critical issue than a fairly

conclusory statement. Further, a close reading of the affidavit calls into

question the thoroughness of any impartial review of the sufficiency of the

probable cause since the bulk of the affidavit actually consists of the same

paragraph (beginning with the words “Affiant was given the above

mentioned Samsung Cellular phone …” and ending with the words “a

statement against her own interest”) repeated three times in close succession.

(See State’s Exhibit #19).

      Given that the affidavit in support of the search warrant does not

establish sufficient probable cause to support the issuance of the search

warrant, it was error for the trial court to deny Appellant’s motion to

suppress.




                                     14
                     CONCLUSION AND PRAYER

      For the reasons set out in the foregoing points of error, Appellant

prays that this Honorable Court of Appeals will reverse Appellant’s

conviction and sentence and remand this case back to the trial court for a

new trial or such other relief as this Honorable Court deems appropriate.

                                      Respectfully submitted,

                                      /s/ Randall J. Ayers
                                      RANDALL J. AYERS
                                      Attorney for Appellant
                                      State Bar No. 01465950
                                      P.O. Box 1569
                                      Houston, Texas 77251-1569
                                      rjayerslaw@comcast.net (email)
                                      (281) 493-6333 (telephone)
                                      (281) 493-9609 (fax)




                                     15
                      CERTIFICATE OF SERVICE

      I certify that I served the foregoing Appellant’s Brief on the District

Attorney of Harris County, Texas, by sending a copy to Mr. Alan Curry,

Chief of the Appellate Division, Harris County District Attorney’s Office,

via electronic service to curry_alan@dao.hctx.net on September 23, 2015.

                                       /s/ Randall J. Ayers
                                       RANDALL J. AYERS
                                       Attorney for Appellant
                                       State Bar No. 01465950
                                       P.O. Box 1569
                                       Houston, Texas 77251-1569
                                       rjayerslaw@comcast.net (email)
                                       (281) 493-6333 (telephone)
                                       (281) 493-9609 (fax)


                   CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9(i)(3) of the Texas Rules of Appellate Procedure I

certify that this document contains a total of 2,873 words.

                                       /s/ Randall J. Ayers
                                       RANDALL J. AYERS
                                       Attorney for Appellant
                                       State Bar No. 01465950
                                       P.O. Box 1569
                                       Houston, Texas 77251-1569
                                       rjayerslaw@comcast.net (email)
                                       (281) 493-6333 (telephone)
                                       (281) 493-9609 (fax)




                                      16
