                                                                             PD-1499-15
                           PD-1499-15                       COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                         Transmitted 11/18/2015 10:02:33 AM
                                                            Accepted 11/18/2015 3:16:00 PM
                                                                             ABEL ACOSTA
                               IN THE                                                CLERK
                  TEXAS COURT OF CRIMINAL APPEALS

AROLDO HUMBERTO CADRIEL,

             Petitioner,
vs.                                  No. __________________________

THE STATE OF TEXAS,

             Respondent.



        PETITION FOR DISCRETIONARY REVIEW

                               McDermott Will & Emery

                               Michael J. Wynne
                               TX Bar No. 00785289
                               McDermott Will & Emery
                               1000 Louisiana Street, Suite 3900
                               Houston, TX 77002
                               Tel: (713) 653-1700
      November 18, 2015
                               Fax: (713)739-7592
                               Email: mwynne@mwe.com

                               ATTORNEY FOR PETITIONER


               PETITIONER REQUESTS ORAL ARGUMENT
              IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Pursuant to Tex. R. App. P. 68.4(a), the list of the trial court judge, all parties to

the judgment or order appealed from, and the names and addresses of all trial and

appellate counsel is as follows:


Trial Judge: Elia Cornejo-Lopez; 404th District Court of Cameron County, Texas


Final Judgment entered by Judge Marisela Saldana.


Parties: State of Texas


      Aroldo Humberto Cadriel


Trial counsel – for the defense: Nat Perez, Jr., 847 E. Harrison Street,

Brownsville, Texas 78520


Appellate counsel – for the defense: Philip T. Cowen, 500 E. Levee Street,

Brownsville, Texas 78520


Trial counsel for the State of Texas: Korina Barraza, Arturo Teniente and Brett

Pattillo, Assistant District Attorneys, , Office of Hon. Luis Saenz, District and

County Attorney for Cameron County, Texas, 964 E. Harrison Street, Brownsville,

Texas 78520-7123




                                            ii
                                        TABLE OF CONTENTS
                                                                                                               Page
STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF PROCEDURAL HISTORY .......................................................2

ABBREVIATIONS AND REFERENCES ...............................................................2

GROUNDS FOR REVIEW .......................................................................................2

ARGUMENT .............................................................................................................4

  1. The Court of Appeals Erred in Finding Probable Cause Would Still

  Exist on Excising from the Affidavit Illegally-Obtained Cell Phone Records

  and in Wrongly Sanctioning the Trial Court’s Knee-Jerk Sacking of

  Appellant’s Suppression Motion. ........................................................................4

  2. The Court of Appeals failed with care to examine the trial court’s failure

  seriously to consider competency. .....................................................................11

PRAYER FOR RELIEF ..........................................................................................13

CERTIFICATE OF SERVICE ................................................................................15

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




                                                         iii
                                      TABLE OF AUTHORITIES

                                                                                                             Page(s)

Cases
Blasdell v. State,
   384 S.W.3d 824 (Tex. Crim. App. 2012) ...........................................................10

Crosby v. State,
  750 S.W.2d 768 (Tex. Crim. App. 1987) ............................................................. 4

Illinois v. Gates,
    462 U.S. 213 (1983) ..............................................................................................5

Ex parte LaHood,
   401 S.W.3d 45, 52–53 (Tex. Crim. App. 2013) .................................................12

Miles v. State,
   241 S.W.3d 28 (Tex. Crim. App. 2007) ............................................................... 8

Morris v. State,
  301 S.W.3d 281, 299 (Tex. Crim. App. 2009) ...................................................11

Rodriguez v. State,
  232 S.W.3d 55 (Tex. Crim. App. 2007) ............................................................... 5

Tillman v. State,
    354 S.W.3d 425 (Tex. Crim. App. 2011) ...........................................................10
Turner v. State,
   422 S.W.3d 676 (Tex. Crim. App. 2013) .....................................................11, 12

Turribiate v. State,
   399 S.W.3d 147 (Tex. Ct. Crim. App. 2013) ....................................................... 7

United States v. Wade,
  388 U.S. 218 .........................................................................................................9

Wilson v. State,
   311 S.W.3d 452 (Tex. Crim. App. 2010) ............................................................. 8
Wong Sun v. United States,
  371 U.S. 471 (1963) ..............................................................................................4
                                                           iv
Statutes
18 U.S.C. § 2702 ................................................................................................5, 6, 7

Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1),(2) (West 2006)............................11
Tex. Code Crim. Proc. Ann. art. 46B.004(b) and 46B.004(c) .................................11

Tex. Code Crim. Proc. arts. 46B.005 & 46B.021(b) ...............................................12
Tex. Crim. Proc. Code Ann. § art. 38.23 ................................................................... 8

Constitutional Provisions
Tex. R. App. P. 68.4(a) ............................................................................................. ii
U.S. Const. Am. IV ...........................................................................................passim

Additional Authorities
http://www.innocenceproject.org/causes-wrongful-
   conviction/eyewitness-misidentification .............................................................. 9
K. L. Pickel, The Influence of Context on the “Weapon Focus” Effect
   23 L. & Hum. Behav. 299–311 (1999) ................................................................ 9
N. M. Steblay, A Meta-analytic Review of the Weapon Focus Effect 16
   L. & Hum. Behav. 413–24 (1992). .....................................................................10
Saul M. Kassin et al., On the “General Acceptance” of Eyewitness
   Testimony Research: A New Survey of the Experts 56 Am.
   Psychologist 405, 414 (2001). ............................................................................10




                                                           v
              STATEMENT REGARDING ORAL ARGUMENT

      Petitioner believes oral argument would be helpful to the Court because

some of the issues, including issues relating to the reliability and weight of

eyewitness testimony that Petitioner raises are germane to ones recently before the

Court and because the public policy matters implicated would be better discussed

in the context of oral argument, where the Court can ask questions and consider

alternatives, which counsel would be prepared to address.



                         STATEMENT OF THE CASE

      This case concerns a conviction based primarily on fleeting eye witness

testimony, including testimony of a witness who made his observations standing at

gunpoint, not unlike the case of Brandon Scott Blasdell v. the State of Texas, PD-

0162-14, 10/15/2014. The Court of Appeals unduly relied on the reports from the

eyewitness account summarized in an affidavit supporting a search warrant

application for Petitioner’s residence to support the trial court’s finding probable

cause after excising a statement derived from telephone records unlawfully

obtained without a search warrant or court order.             The Court of Appeals

compounded this error by finding lawful the Petitioner’s alleged waiver of his

rights to challenge effectively the court’s finding of competency and to challenge

by expert testimony the state’s porous ballistics evidence.

                                          1
                STATEMENT OF PROCEDURAL HISTORY

   (1) Date of opinion from the Court of Appeals          September 25, 2015

   (2) Date of Motion for Rehearing                       October 7, 2015

   (3) Date Motion for Rehearing Denied                   October 19, 2015



                   ABBREVIATIONS AND REFERENCES

      The Memorandum Opinion of the Court of Appeals is attached to this

petition as an appendix.

      The Clerk’s Record (CR) is referred to by page number (e.g., CR93).

      The Reporter’s Record (RR) is referred to by volume number, then page

number (e.g., 5 RR 22).



                           GROUNDS FOR REVIEW

   1. The state’s seizure of telephone records without a warrant or court order is a

      violation of the Fourth Amendment. The records must be suppressed and

      cannot form the basis for a search warrant application. On review, the Court

      of Appeals tried to excise the unlawfully obtained records from the search

      warrant for Petitioner’s residence. All that remained to support probable

      cause was a summary of a couple eyewitnesses’ fleeting accounts. One of

      the purported eyewitnesses saw whoever he saw while at gunpoint seconds


                                         2
   before he fled the scene, necessarily rendering dubious the accuracy of any

   identification. The other, a drug dealer, allegedly encountered the victim

   with the Petitioner at 2:00 a.m. Because the lower courts refused to suppress

   evidence obtained upon execution of the search warrant, the conviction must

   be overturned.



2. The Court of Appeals erred in determining that the trial court conducted a

   sufficient competency inquiry, as illustrated, among other ways, most

   tellingly by the Court’s approving the trial’s court’s cursory and casual

   dismissal of the fact that Petitioner’s illogically and inarticulately declined

   an opportunity to enlist an expert [at no cost] to challenge the state’s Sacking

   questionable ballistics evidence. To suggest that Petitioner at the time he

   made such a clearly irrational decision had the capacity to determine

   voluntarily whether he first had the capacity himself to proceed with any

   such decisions is disingenuous.




                                       3
                                  ARGUMENT

   1. The Court of Appeals Erred in Finding Probable Cause Would Still
      Exist on Excising from the Affidavit Illegally-Obtained Cell Phone
      Records and in Wrongly Sanctioning the Trial Court’s Knee-Jerk
      Sacking of Appellant’s Suppression Motion.
   Petitioner’s conviction rested, in large part, on evidence seized pursuant to a

search warrant executed at Petitioner’s home, specifically, the weapon allegedly

connecting Petitioner to the murder. The weapon, however, should never have

been introduced into evidence because it was the “fruit of a poisonous tree:” the

result of an unlawful search and seizure and procured in violation of Petitioner’s

Fourth Amendment rights. See, e.g., Wong Sun v. United States, 371 U.S. 471, 484

(1963); Crosby v. State, 750 S.W.2d 768, 780 (Tex. Crim. App. 1987). Probable

cause for the warrant to search Petitioner’s home was based on the review of

Petitioner’s cell phone records, which were unlawfully obtained, as described more

fully below. Because the search warrant used to enter Petitioner’s home was

constitutionally defective and invalid on its face, the Texas exclusionary rule

dictates that all evidence derived from this illegal search and seizure should have

been suppressed. Without the weapon seized as a result of this invalid warrant, the

State had insufficient evidence to convict Petitioner.     The Court’s failure to

suppress this evidence compels more thorough analysis to ensure justice has been

done in such a painfully consequential case.

                                         4
   The cornerstone of the Fourth Amendment is that a search warrant may not be

issued without a finding of “probable cause” that a particular item will be found at

a particular location. See Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App.

2007). Probable cause for a search warrant exists if, under the totality of the

circumstances presented to the magistrate, there is at least a “fair probability” or

“substantial chance” that contraband or evidence of a crime will be found at the

specified location. Illinois v. Gates, 462 U.S. 213, 238 (1983). In this instance

case, probable cause for the warrant to search Petitioner’s home rested on two

factors: (1) Petitioner’s cell phone records from his wireless provider, Cricket,

placing him in the victim’s vicinity, and (2) eyewitness testimony regarding

Petitioner’s whereabouts. Each of these factors is discussed below.

   With respect to the first factor, Petitioner’s cell phone records were unlawfully

obtained and therefore cannot form the basis for probable cause. It is undisputed

that the government did not obtain a warrant or court order to obtain Petitioner’s

cell phone records, in clear violation of Petitioner’s statutory and constitutional

rights.   See 18 U.S.C. § 2702(c)(1).        No exigent circumstances justify the

government’s failure to secure a warrant and therefore the unlawfully-obtained cell

phone records cannot form the basis for probable cause. The murder had already

occurred, the body had already been found, and the number of bullets fired

indicated that whoever committed the act clearly intended to attack a specific


                                         5
person. The state’s given rationalization for “exigent circumstances,” that once a

person has killed, he or she may kill again is disingenuous and self-serving. See 4

RR 35-45. Moreover, Appellant had voluntarily come to the police station for

questioning, and they had let him leave, belying any suggestion that he was

dangerous to the community at large. Id. The state’s explanation for letting him

go and out of the same mouth claiming that an exigent threat existed to the

community at large, rationalizing an unadorned contempt for the Fourth

Amendment, id., – that it had no suspect -- is whimsical. Such an unwieldy and

convenient exception to the warrant requirement, if embraced any more widely,

would swallow the structural, cherished, and sacred Fourth Amendment warrant

requirement.

   Under the Stored Communications Act (“SCA”), a provider may disclose

customer records (including cell phone records) without a court order or a warrant

in emergency situations.     18 U.S.C. § 2702 sets forth the general rule that

“electronic communication service to the public shall not knowingly divulge” the

contents of a communication. The statute, however, provides an exception for

disclosure of customer records to a governmental entity “if the provider, in good

faith, believes that an emergency involving danger of death or serious physical

injury to any person requires disclosure without delay of information relating to the




                                         6
emergency.” Id. at § 2702(c)(4). Here, there was no such emergency, and the

state’s warrantless procurement of the phone records was unlawful.

   The State secured Petitioner’s phone records from Petitioner’s wireless

provider, Cricket, by submitting an exigent circumstances form, ostensibly in

compliance with 18 U.S.C. § 2702(c)(4). By submitting this form, the State

vouchsafed that there was an emergency involving a danger of death or serious

physical injury to a person requiring disclosure without delay of communications

related to the emergency, and that the emergency justified disclosure of phone

records without a warrant or court order.       However, the facts of this case belie

the contention that any exigent circumstance existed.

   Exigent circumstances usually involve an increased likelihood of apprehending

a suspect, danger to the victim or police, or the possible destruction of evidence.

See Turribiate v. State, 399 S.W.3d 147, 151 (Tex. Ct. Crim. App. 2013)

(addressing the law applicable to warrantless entry and acknowledging that a

warrantless entry into a residence is presumptively unreasonable). As previously

discussed, none of these circumstances apply here. The State’s rote “compliance”

with the pro forma requirements of 18 U.S.C. 2702(c)(4) are insufficient to pass

statutory or constitutional muster. Again, if exigent circumstances were to exist

simply because it is expedient for the state to claim they do, the exigent




                                            7
circumstances exception swallows the rule and the protection afforded by the

warrant requirement is illusory.

   Texas’s broadly-worded exclusionary rule, which is enshrined in statute,

compels exclusion of any evidence resulting from the wrongfully-obtained

warrant. Tex. Crim. Proc. Code Ann. § art. 38.23 requires exclusion of “evidence

obtained by an officer or other person in violation of any provisions of the

Constitution or laws of the state of Texas, or of the Constitution or laws of the

United States of America . . . evidence against the accused [in] any criminal case.”

Article 38.23, like its federal counterpart, seeks to protect a suspect’s privacy,

property, and liberty rights against overzealous law enforcement Wilson v. State,

311 S.W.3d 452, 458–59 (Tex. Crim. App. 2010). The Texas rule also prohibits

evidence obtained through an illegal act. Id.; see also Miles v. State, 241 S.W.3d

28, 36 (Tex. Crim. App. 2007). (holding that exclusionary rule applied to

confession obtained after showing murder suspect a forged lab report purporting to

show a match between suspect’s fingerprints and those found on the alleged

murder weapon). The Texas rule further applies to evidence illegally obtained by

private citizens, “even when those [private citizens] are not acting in conjunction

with, or at the request of, government officials.” Miles, 241 S.W.3d at 36. The

broad protections afforded by the Texas exclusionary rule make plain that reliance




                                         8
on evidence secured in violation of a defendant’s constitutional and statutory rights

is disfavored strongly.

   After this constitutionally-defective evidence—the phone records— is excised,

the only remaining evidence against Petitioner is two unreliable eyewitness

accounts, which are insufficient to support a finding of probable cause. Courts

have long observed the unreliability of expert testimony. See, e.g., United States v.

Wade, 388 U.S. 218, 228, (“The identification of strangers is proverbially

untrustworthy.”).    Scholars have opined regarding the impact of unreliable

eyewitness testimony on the criminal justice system for decades.           See, e.g.,

Woocher, “Do Your Eyes Deceive You? Expert Psychological Testimony on the

Unreliability of Eyewitness Testimony,” Stanford Law Review, Vol. 29, No. 5

(May, 1977), pp. 969-1030. More recent studies have suggested that unreliable

eyewitness testimony is a hallmark of wrongful convictions “playing a role in

nearly   70%    of   convictions   overturned    by   DNA     testing   nationwide.”

http://www.innocenceproject.org/causes-wrongful-conviction/eyewitness-

misidentification

   One of the eyewitnesses who implicated Petitioner did so at gunpoint. The

reliability of this eyewitness identification, when made facing down the barrel of a

gun, is exceptionally suspect. See, e.g, Law and Human Behavior – K. L. Pickel,

The Influence of Context on the “Weapon Focus” Effect, 23 L. & Hum. Behav.


                                         9
299–311 (1999); N. M. Steblay, A Meta-analytic Review of the Weapon Focus

Effect, 16 L. & Hum. Behav. 413–24 (1992).             The impact of a weapon on

eyewitness identification is known in the scholarship as “the weapon focus effect.”

See id. As one expert witness explained to this Court, “weapon focus effect,” is “a

tendency, when there is a weapon involved, particularly in brief encounters, for the

weapon to essentially attract attention away from the perpetrator’s face and, by

doing so, result in lesser accuracy for the identification.” Blasdell v. State, 384

S.W.3d 824, 827–28 (Tex. Crim. App. 2012). Such testimony is, under the

appropriate set of facts, relevant to a jury as required by the state’s version of Fed.

R. Civ. P. 702. Id. at 831; Tex. R. Evid. Rule 702. This Court has also

acknowledged a 2001 survey in which seventy to eighty-seven percent of surveyed

experts found research on the topic of “weapon focus” to be reliable. Tillman v.

State, 354 S.W.3d 425, 437 (Tex. Crim. App. 2011) (citing New Jersey v.

Henderson, 208 N.J. 208, 27 A.3d 872 (2011)); see also Saul M. Kassin et al., On

the “General Acceptance” of Eyewitness Testimony Research: A New Survey of

the Experts, 56 Am. Psychologist 405, 414 (2001).          This inherently defective

eyewitness testimony upon which the warrant is based—and failure to safeguard

Petitioner’s Fourth Amendment rights-- compel rehearing to reverse his

conviction.




                                          10
   2. The Court of Appeals failed with care to examine the trial court’s
      failure seriously to consider competency.

   Petitioner’s conviction should also be reversed because he was incompetent to

stand trial.   The prosecution and conviction of a defendant if he is legally

incompetent violates due process. Morris v. State, 301 S.W.3d 281, 299 (Tex.

Crim. App. 2009). To protect a defendant’s constitutional and statutory rights, a

trial court must inquire into the defendant’s mental competence once the issue is

properly brought to the court’s attention. See Turner v. State, 422 S.W.3d 676, 689

(Tex. Crim. App. 2013). A defendant is incompetent to stand trial if he does not

have “sufficient present ability to consult with [his] lawyer with a reasonable

degree of rational understanding” or “a rational as well as factual understanding of

the proceedings against” him. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1),(2)

(West 2006);      See also Turner, 422 S.W.3d at 682-83 (evaluating whether

Defendant had a rational and factual understanding of the proceeding against him).

If evidence suggesting a defendant’s incompetence comes to the trial court’s

attention, the court must determine by informal inquiry whether there is some

evidence from any source that would support a finding that the defendant may be

incompetent to stand trial. See Tex. Code Crim. Proc. Ann. art. 46B.004(b) and

46B.004(c). A mere suggestion of incompetency is the threshold requirement for

an informal inquiry . . . ." Id. art. 46B.004(c-1 ).

                                           11
   In conducting its informal inquiry, a trial court must consider only the evidence

tending to show incompetency, “putting aside all competing indications of

competency, to find whether there is some evidence, a quantity more than none or

a scintilla, that rationally may lead to a conclusion of incompetency.” Ex parte

LaHood, 401 S.W.3d 45, 52–53 (Tex. Crim. App. 2013).            If, after its informal

inquiry, the trial court determines that evidence exists to support a finding of

incompetency, the statutory scheme requires the trial court to conduct a formal

competency trial. Turner, 422 S.W.3d at 692; Tex. Code Crim. Proc. arts. 46B.005

& 46B.021(b).

   Although the informal inquiry need not be exhaustive, the cursory glance at the

issue in this case was manifestly insufficient. Petitioner’s decision to decline to

enlist a ballistics expert—at no cost to him--to evaluate ballistics evidence calls

into question his ability to rationally and factually understand the allegations

against him. Under oath, Petitioner told the Court, in response to the Court’s

question, that he had three issues with retaining a ballistics expert, but he declined

to elaborate on those reasons stating “I just want to move on.”       3 RR 26. The

Court then asked Petitioner, at counsel’s suggestion, whether he desired to decline

testing or examination concerning his mental capacity, insanity, or diminished

capacity, Petitioner with hesitation said, “Yes, Your Honor. That my – that’s and

there are several reasons behind it.” 3 RR 27.


                                         12
      The record reflects a bench conference, during which Petitioner was

instructed to confer with his attorney for “two or three minutes.” Nothing on the

record, however, shows any inquiry into whether Petitioner understood the

consequences of declining a mental health evaluation. See 3 RR 27-28. Nor did

the Court formally confirm with Counsel that Counsel believed that Petitioner

understood the proceedings and was able to assist in his own defense.

      The Court was aware of Petitioner’s disorders, including his bipolar

disorder, but simply took Petitioner’s word for it that he was “okay.”            By

definition, he was not. At the very least, the Court had an obligation to address the

three issues the Petitioner twice mentioned but was not allowed the opportunity to

identify and explain on the record. While this rush to move along may have been

expedient for the Court and counsel, the informal inquiry was not sufficient to

demonstrate Petitioner’s competency.      As such, it fails satisfy the very basic

constitutional protections afforded by the Constitution and Texas statute, and

warrants remand.



                             PRAYER FOR RELIEF

      Petitioner requests that the Court of Criminal Appeals to grant this petition

for discretionary review. Petitioner also requests that this Court order all evidence

seized from the search of his residence be suppressed. Consequently, Petitioner


                                         13
requests that this Court reverse his conviction direct the lower courts to enter a

judgment of acquittal ordered. In the alternative, Petitioner requests that this Court

remand for a new trial.


       Petitioner also requests such other and further relief to which he may be

entitled.


                                       Respectfully submitted,



                                       /s/ Michael J. Wynne

                                       Michael J. Wynne
                                       TX Bar No. 00785289
                                       McDermott Will & Emery
                                       1000 Louisiana Street, Suite 3900
                                       Houston, TX 77002
                                       Tel: (713) 653-1700
                                       Fax: (713)739-7592
                                       Email: mwynne@mwe.com

                                       ATTORNEY FOR PETITIONER




                                         14
                        CERTIFICATE OF SERVICE

      I hereby certify that on November 18, 2015, a copy of the foregoing Petition
for Discretionary Review was served on the following by certified mail, return
receipt requested:



Rene B. Gonzalez, Esq.
Cameron County District Attorney’s Office
4th Floor
964 E. Harrison Street
Brownsville, TX 78520-7123


Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711


                                     /s/ Michael J. Wynne




                                       15
                     CERTIFICATE OF COMPLIANCE

      I hereby certify that this Petition for Discretionary Review conforms to the
requirement of Texas Rule of Appellate Procedure 9 and consists of less than 4,500
words, that is 3527 words, per Texas Rule of Appellate Procedure 9.4(i)(2)(D).


                                     /s/ Michael J. Wynne




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