                                                                              ACCEPTED
                                                                          01-15-00418-CR
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                    11/24/2015 9:46:06 AM
                                                                    CHRISTOPHER PRINE
                                                                                   CLERK

   Nos. 01-15-00416-CR, 01-15-00417-CR, 01-15-00418-CR

               IN THE COURT OF APPEALS                   FILED IN
            FOR THE FIRST DISTRICT OF TEXAS       1st COURT OF APPEALS
                                                      HOUSTON, TEXAS
                                                  11/24/2015 9:46:06 AM
                                                  CHRISTOPHER A. PRINE
              TRAVIS MARCELLAUS EDWARDS                    Clerk
                       Appellant

                            v.

                  THE STATE OF TEXAS
                        Appellee


On Appeal from Cause Numbers 1353154, 1443321, and 1443322
    From the 228th District Court of Harris County, Texas



                  BRIEF FOR APPELLANT



                                 ALEXANDER BUNIN
                                 Chief Public Defender
                                 Harris County, Texas

                                 DAUCIE SCHINDLER
                                 Assistant Public Defender
                                 Harris County, Texas
                                 Texas Bar Number 24013495
                                 1201 Franklin, 13th Floor
                                 Houston, Texas 77002
                                 Phone: (713) 368-0016
                                 Fax: (713) 386-9278

                                 Counsel for Appellant

                Oral Argument is Requested

                            1
             IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                         Mr. Travis M. Edwards
                                   TDCJ No. 01996602
                                   Garza West Transfer Facility
                                   4250 Highway 202
                                   Beeville, Texas 78102

TRIAL PROSECUTOR:                  Mr. Aaron Chapman
                                   Assistant District Attorneys
                                   Harris County, Texas
                                   1201 Franklin
                                   Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:          Ms. Allie R. Booker
                                   4801 Woodway, Suite 300E
                                   Houston, Texas 77056

                                   Mr. Ronald Ray, Sr.
                                   1456 FM 1960 West
                                   Houston, Texas 77090

PRESIDING JUDGE:                   Hon. Marc Carter
                                   228th District Court
                                   Harris County, Texas
                                   1201 Franklin,16th Floor
                                   Houston, Texas 77002

COUNSEL ON APPEAL FOR APPELLANT:   Ms. Daucie Schindler
                                   Assistant Public Defender
                                   Harris County, Texas
                                   1201 Franklin, 13th Floor
                                   Houston, Texas 77002
                                   Daucie.Schindler@pdo.hctx.net




                            2
                                                 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL................................................................................... 2
TABLE OF CONTENTS ............................................................................................................. 3
INDEX OF AUTHORITIES......................................................................................................... 5
STATEMENT OF THE CASE ...................................................................................................... 7
STATEMENT OF FACTS ............................................................................................................ 7
SUMMARY OF THE ARGUMENT ............................................................................................ 13
ARGUMENT ............................................................................................................................ 14
          ISSUE ONE: The trial court erred by denying Mr. Edwards’ Motion
                     to Suppress evidence seized pursuant to a general
                     search warrant.

               ARGUMENT .......................................................................................................... 14
          ISSUE TWO: The trial court abused its discretion in admitting over
                     objection text messages that the State claimed to have
                     been authored by Mr. Edwards and an unknown
                     individual, where the evidence was not sufficiently
                     authenticated. There was inadequate circumstantial
                     evidence establishing that such evidence was what its
                     proponent claimed it to be, namely, a message actually
                     sent by Mr. Edwards.

               ARGUMENT .......................................................................................................... 18
               APPLICABLE LAW, STANDARD OF REVIEW, AND DISCUSSION ........................ 19
               HARM ANALYSIS .................................................................................................. 24
          ISSUE THREE: The evidence is legally insufficient to sustain Mr.
                    Edwards’ conviction for aggravated robbery because a
                    reasonable doubt exists regarding whether he was in
                    the course of committing theft at the time he allegedly
                    used force against the complainant.

               STANDARD OF REVIEW ....................................................................................... 25


                                                                   3
          ISSUE FOUR: Without some form of factual sufficiency review, Mr.
                Edwards is deprived of his right to meaningful review of his
                conviction for aggravated robbery, as guaranteed by the U.S.
                Constitution and this Court should conclude that the
                evidence in this case is factually insufficient to support that
                conviction.

                ARGUMENT ......................................................................................................... 27
PRAYER .................................................................................................................................. 31

CERTIFICATE OF COMPLIANCE ............................................................................................ 32

CERTIFICATE OF SERVICE .................................................................................................... 33




                                                                     4
                                              INDEX OF AUTHORITIES
Cases
Angleton v. State, 971 S.W.2d 65 (Tex. Crim. App. 1998). ................................................ 19
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). .....................................26, 28, 30
Campbell v. State, No. 13-11-00834-CR, 2012 WL 3793431 (Tex. App. -Austin August
  31, 2012, no pet.). .................................................................................................20, 21, 22
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). .................................................. 30
Coolidge v. New Hampshire, 403 U.S. 443 (1971) .....................................................14, 16, 17
Druery v. State, 225 S.W.3d 491 (Tex. Crim. App), cert denied, 128 S.Ct. 627 (2007).. 20
Griffin v. Illinois, 351 U.S. 12 (1956). ................................................................................... 27
Griffin v. State, 19 A.3d 415 (Md. 2011). ............................................................................. 22
Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2014). ................................................ 27
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). ..................................................... 27
In re Winship, 397 U.S. 358 (1970)....................................................................................... 28
Jackson v. Virginia, 443 U.S. 307 (1979). ....................................................................... 26, 29
Lemons v. State, 298 S.W.3d 658 (Tex. App. –Tyler 2009, pet. ref’d).............................. 17
Maryland v. Garrison, 480 U.S. 79 (1987)....................................................................... 14, 16
M.L.B. v. S.L.J., 519 U.S. 102 (1996). ................................................................................ 28
Moreno v. State, 755 S.W.2d 866 (Tex. Crim. App. 1988). ................................................ 26
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002).................................................... 24
Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005). ..................................................... 24
Riley v. United States, 13-132, 2014 WL 2864483, ___U.S.___ (June 25, 2014)............. 18
State v. Dixon, 13-09-004445-CR, 2010 WL3419231 (Tex. App. -Corpus Christi Aug.
  27, 2010, pet. ref'd). .......................................................................................................... 17
Tibbs v. Florida, 457 U.S. 31 (1982) ..................................................................................... 26
Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012). .............................. 19, 20, 21, 22
Trevino v. Thaler, 133 S. Ct. 1911 (2013)........................................................................ 28, 29
United States v. Finley, 477 F.3d 250 (5th Cir. 2007) ............................................................ 17
United States v. Leary, 846 F.2d 592 (10th Cir. 1988). ......................................................... 17
United States v. Ross, 456 U.S. 798 (1982)............................................................................ 15
United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) ...................................................... 17
Tolentino v. State, 638 S.W.2d 499 (Tex. Crim. App. [Panel Op.] 1982) ......................... 14
Williams v. State, 235 S.W.3d 742 (Tex. Crim App. 2007)................................................ 26
Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010)................................................. 27




                                                                  5
Statutes

Texas Criminal Procedure Code Ann. Art. 18.01 ............................................................ 14
Texas Penal Code §29.02..................................................................................................... 25
Texas Penal Code §31.03..................................................................................................... 25



Rules

Texas Rules of App. Proc. 44.2(b). .............................................................................. 19, 24
Texas Rules of Evidence 104. ............................................................................................. 19
Texas Rules of Evidence 401. ............................................................................................. 19
Texas Rules of Evidence 901. ....................................................................................... 19, 20



Constitutional Provisions

U.S. Constitution Amendment IV ..................................................................................... 14




                                                              6
                             STATEMENT OF THE CASE
      Mr. Edwards was charged by indictment on August 14, 2012, with aggravated

assault in cause number 1353154. (1 C.R. at 17). He was charged by indictment on

September 30, 2014, with aggravated robbery in cause number 1443321, (2 C.R. at 5),

and with felon in possession of a firearm in cause number 1443322. (3 C.R. at 5).

The indictments further alleged an enhancement paragraph for a prior conviction for

aggravated robbery. Mr. Edwards pled “not guilty” as charged in the indictments. (3

R.R. at 23). After a jury trial, Mr. Edwards was found guilty on all three charges and

sentenced to thirty (30) years in the Institutional Division of the Texas Department

of Criminal Justice for both the aggravated assault and the aggravated robbery. He

was sentenced to ten (10) years for the felon in possession of a weapon charge and all

three sentences were ordered to run concurrently. (6 R.R. at 66). Timely Notice of

Appeal was filed on April 23, 2015, and undersigned counsel with the Harris County

Public Defender’s Office was appointed to represent Mr. Edwards on appeal. (1 C.R.

at 501-503, 2 C.R. at 59-61, and 3 C.R. at 57-59).

                             STATEMENT OF FACTS

      Angel Madrazo, a Cuban immigrant to the United States, worked as a security

guard for Texas Line Agency Patrol with the assignment of monitoring the admission

of patrons to a game room. Only individuals with membership cards were admissible

to the game room and he was responsible for refusing admission to nonmembers.

Mr. Madrazo wore a security guard’s uniform, but he took off the shirt and left it in

                                           7
his truck when he used the restroom because the restroom was small and had no

place to hang clothing. On June 21, 2012, he removed his shirt to use the restroom,

but when he returned to his post, two male nonmembers attempted to enter the game

room. When he refused admission one of the men pulled out a gun. Unable to

retrieve his own weapon quickly enough, Mr. Madrazo kicked the man with the gun

causing him to fall backwards and accidently discharge his weapon. That man, who

Mr. Madrazo identified in the courtroom as Mr. Edwards, regained his balance and

took off running. Mr. Madrazo chased the man and noticed two additional men; one

in a car and the other behind the car.         A shootout ensued and Mr. Madrazo

discharged his weapon at least fifteen times. (4 R.R. at 140-161).

      Two patrons of the game room, Katherine Butler and Curtis Young, saw the

men attempt to enter and heard several shots fired. Ms. Young was able to see the

guard follow the men out of the game room and duck behind a big pillar; firing his

gun. Mr. Young was outside and saw an illegally parked car with a man sitting in it.

Both of them believed that bullets seemed to be “coming from everywhere.” Mr.

Young called 911 and he was able to approach Mr. Madrazo and allow him to speak

with the 911 operator. (4 R.R. at 95; 110-124).

      The first responder to the scene was deputy Tommy Wilks with the Harris

County Sheriff’s Office. When he arrived at the location he identified a Hispanic

male, Mr. Madrazo, and found him to be in possession of a 9-milimeter pistol. Mr.



                                           8
Madrazo gave him the weapon and an empty magazine. Deputy Wilks conducted a

protective sweep, secured the scene, and took the statements of witnesses while other

officers and the crime scene investigation unit arrived. (5 R.R. at 10-23).

      Deputy Gary Clayton with the Harris County Sheriff’s Office crime scene unit

arrived at the scene and recovered a number of spent shell casings and one firearm

from outside the game room, but he was denied access to the interior of the game

room. In addition, the vehicle at the scene was processed and it was determined that

the ignition system had been broken suggesting that the vehicle had been stolen. A

deformed projectile was found on the floor of the vehicle and a cell phone was found

on top of the vehicle. Finger prints were lifted from the lid of the trunk and the

fingerprints indicated a possible match to Mr. Edwards. (5 R.R. at 26-55).

      Deputy Clayton recovered four (4) Winchester Lugar 9-millimeter spent

casings, five (5) PPU Lugar 9-millimeter spent casings, one (1) CBC 9-millimeter

Lugar spent casing, two (2) Blazer 9-millimeter Lugar spent casings, one (1)

Winchester 9-millimeter Lugar spent casing, and one (1) Federal .380 caliber auto

spent casing at the scene. (5 R.R. at 83). The gun that was obtained from the security

guard at the scene was a 9-millimeter semiautomatic firearm.            (5 R.R. at 78).

Therefore, nearly all of projectiles recovered were fired from the security guard’s gun.

(5 R.R. 96).




                                           9
      Deputy Roberto Rincon with the robbery division of the Harris County

Sheriff’s Office was assigned to the case on June 27, 2012. He produced a photo

array that included a picture of Mr. Edwards and he presented it to Mr. Madrazo who

identified Mr. Edwards. (4 R.R. at 41-48; 54). Mr. Madrazo also gave a statement

indicating that he had discharged his weapon and believed that he had hit one of the

suspects. On the day of the robbery, a man named Rory Jones was admitted to the

hospital with a gunshot wound and he too was identified as a suspect in the robbery.

An employee at the game room, Maria Madina, was able to identify Mr. Jones as one

of the shooters at the scene, but she was not able to identify Mr. Edwards. (4 R.R. at

49-58).   Accord to Deputy Rincon, Mr. Edwards was originally charged with

aggravated assault, not aggravated robbery, because there was no evidence that he

“demanded any money.” (4 R.R. at 78). In addition, Rebecca Mikulasovich, a DNA

analyst with the Harris County Institute of Forensic Sciences, analyzed several swabs

for this case and was not able to match any of the samples taken to a DNA sample

obtained from Mr. Edwards. (5 R.R. at 132-158).

      Tuan Pham, an investigator with the Harris County District Attorney’s Office,

received the cell phone that was obtained in connection with this case and he

downloaded the data from the phone to a thumb drive. He generated a report

documenting all of the data obtained from the phone and the phone’s SD card




                                         10
including pictures, e-mails, and text messages that predated and were unrelated to this

case.

        However, on June 21, 2012, there was a series of text messages suggesting that

someone was scoping out an unknown location for purposes of committing a

robbery. The text messages were admitted into evidence as follows:

        Incoming Text:     A lil Mexican man for security. One man, two chicks,
                           Mexicans. They by the door. The Mexican chick in purple
                           got the money.

        Outgoing text:     So it’s four people total. One security guard, two floor
                           workers both ladies and a dude? What side does he have
                           his strap on? Also is he opening the doors to let people
                           out?

        Incoming Text:     Right side but he old.

        Incoming text:     He swing the door open wide

        Outgoing text:     How many people total on the floor, 3 r 4? Whenever its
                           good. We ready.

        Incoming text:     Yea, he open it and he watching TV with two of the
                           workers talking. The one with the money in the purple got
                           the money.

        Outgoing Text:     So it’s just two ladies n a security guard? I keep asking
                           bcuz I don’t won’t no surprises.

        Incoming text:     One other Mexican man in a gray shirt.

        Outgoing Text:     Do we have a strap?

        Incoming Text:     Yea, on the right side.

        Outgoing Text:     We were finding a escape route. Is it still good?


                                           11
Incoming Text:   Yea

Incoming Text:   They emptying two machines.

Outgoing Text:   Let them empty them all out. Keep ur eyes open. They
                 ‘bout to hit the back room and count the scrill.

Incoming Text:   Ok.

Outgoing Text:   Where is the employees only room located?

Incoming Text:   In the front.

Outgoing Text:   To the left r right? Queen, I need specific details.

Incoming Text:   Nall the back, but let me watch them ‘cause they signs
                 fucked up. That’s a restroom right in front, but it’s two
                 doors in the back.

Incoming Text:   They all doing the machines with the money in a
                 Honeybun box.

Outgoing Text:   Let them finish n when they all on the floor, text me when
                 it’s good.

Incoming Text:   Money room back right-hand side on the ATM side.

Incoming Text:   Ok, one chick in the back, but they close at 12.

Outgoing Text:   Is U ready? Can that door be kicked open? Is the money
                 room open?

Incoming Text:   The chick in black in there and the chain off the door.
                 What I need to do?

Outgoing text:   If it’s cool n that security guard chilling, draw ur tic n hit
                 me.

Incoming Text:   I’m da only person left. What’s good?


                                 12
      Outgoing Text:       When u c us, pull up, cum out, When he get out.

(5 R.R. at 184-194; State’s Exhibit 205).

                           SUMMARY OF THE ARGUMENT

      The trial court erred in denying Mr. Edward’s Motion to Suppress and

improperly admitting evidence obtained from a cell phone found at the scene and

searched pursuant to an impermissibly general search warrant. Even if the search

warrant is deemed sufficiently specific, the text messages obtained from the phone

and attributed to Mr. Edwards and an unknown individual were inadmissible because

the state failed to properly authenticate them and the probative value of admission

was outweighed by the prejudicial effect.

      In addition, Mr. Edwards argues that the evidence is in no way sufficient to

support a conviction for aggravated robbery, as there was not even a modicum of

evidence that Mr. Edwards took any measure toward committing theft of property.

Even if the evidence is legally sufficient, Mr. Edwards will be denied due process of

law if this court fails to conduct a factual sufficiency review because the evidence is

factually insufficient to support his conviction for aggravated robbery.




                                            13
                                      ARGUMENT

       ISSUE ONE: The trial court erred by denying Mr. Edwards’ Motion
                  to Suppress evidence seized pursuant to a general
                  search warrant.

                                    STANDARD OF REVIEW

       The Fourth Amendment to the United States Constitution requires that “no

warrants shall issue, but upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the person or things to be

seized.” U.S. Const amend. IV.        Likewise, the Texas Code of Criminal Procedure

article 18.01(c) requires a probable cause affidavit to set forth facts establishing that

(1) a specific offense has been committed, (2) the item to be seized constitutes

evidence of the offense or evidence that a particular person committed the offense,

and (3) the item is located at or on the person, place, or thing to be searched. Tex.

Code Crim. Proc. Art. 18.01(c); see Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim.

App. [Panel Op.] 1982).

       Items, such as data, can only be seized if there is probable cause to support

their seizure. See Coolidge v. New Hampshire, 403 U.S. 443 (1971). With respect to the

particularity requirement, the Supreme Court has recognized that it “ensures that the

search will be carefully tailored to its justifications, and will not take on the character

of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland

v. Garrison, 480 U.S. 79, 84 (1987). As a result, “the scope of a lawful search is

‘defined by the object of the search and the places in which there is probable cause to

                                            14
believe that it may be found.        Just as probable cause to believe that a stolen

lawnmower may be found in a garage will not support a warrant to search an upstairs

bedroom, probable cause to believe that undocumented aliens are being transported

in a van will not justify a warrantless search of a suitcase.’” Id. at 84-85 (citing United

States v. Ross, 456 U.S. 798, 824 (1982)).

         Here, the search warrant was overbroad and failed to show that the items

seized were contraband, instruments of committing a crime, or evidence of a crime’s

commission. The search requested by law enforcement here was the very “general”

search that precipitated the enactment of the Fourth Amendment. The warrant

reads:

         NOW, THEREFORE, you are commanded to enter and search one cell
         phone, for items and information constituting evidence of an offense,
         specifically: Aggravated Assault of a Security Officer, Theft of an Automobile,
         and/or Aggravated Robbery or constitution evidence tending to show that a
         particular person committed an offense that may be found therein. The
         phones may be more particularly described as: a Huawei M865 cell phone with
         black touchscreen and blue case, with serial number #T8U9MA1172104698.
         The phone was found abandoned on top of a vehicle belonging to
         complainant Ashley Alexander, at or near 12750 Woodforest, Houston, Texas,
         on June 21st, 2012. At this time the cellular phone is now in the possession of
         Affiant at 1201 Franklin St., Houston, Harris County, Texas, and you are
         commanded to enter this phone for the purpose of searching for and seizing
         all stored communication located in an electronic mailbox, voicemail, Personal
         Identification Numbers, text messages, names, numbers and addresses stored
         in a phone book application, all cell phone memory including flash drives,
         photographs and any data, video, audio, and cellular number files listed in the
         memory or stored on this cellular phone, electronic media; digital notes stored
         within; audio recordings stored within; history of web sites accessed on the
         world wide web; emails received, sent, deleted, saved, or otherwise; call logs
         received, sent, deleted, saved or otherwise; phone numbers received, sent,


                                             15
      deleted, saved, or otherwise; text messages received, sent, deleted, saved or
      otherwise; instant messaging received, sent, deleted, saved or otherwise; voice
      messages received, sent, deleted, saved, or otherwise; photographs received,
      sent, deleted, saved or otherwise; videos received, sent, deleted, saved, or
      otherwise.

(See State’s Exhibit 4).   The Supreme Court has recognized two constitutional

protections served by the warrant requirement of the Fourth Amendment. “First, the

magistrate’s scrutiny is intended to eliminate altogether searches not based on

probable cause. The premise here is that any intrusion in the way of the search or

seizure is an evil, so that no intrusion at all is justified without a careful prior

determination of necessity.” Coolidge, 403 U.S. at 467. Second, “those searches

deemed necessary should be as limited as possible. Here, the specific evil is the

‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion

per se, but of a general, exploratory rummaging in a person’s belongings.” Id.

      Therefore, to follow the dictates of the Fourth Amendment and avoid issuing a

general warrant, there must be probable cause to seize each item specified in the

warrant. Here, the warrant casts a dragnet over data and communications that surely

have nothing to do with this case, including those to and from third parties, who will

never know of the State’s seeing their communications with Mr. Edwards about

unrelated matters.   With respect to searches of electronic information, careful

attention must be paid to the dictates of the particularity requirements of the Fourth




                                          16
Amendment, which limits the “authorization to search to the specific areas and things

for which there is probable cause to search.” Garrison, 480 U.S. at 84.

      Any search of an electronic source has the potential to unearth tens or

hundreds of thousands of individual documents, pictures, movies, or other

constitutionally protected content. It is thus imperative that the State “describe the

items to be seized with as much specificity as the government’s knowledge and

circumstances allow.” United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988). The

general warrant in this case allowed the State to conduct a “general, exploratory

rummaging in a person’s belongings” –in this case an individual’s cellphone. Coolidge,

403 U.S. at 467. This overly broad warrant makes no effort to balance the law

enforcement interest against the expectation of privacy cellphone owners have. See

United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir. 2010).

      In Dixon, the court found that there was some evidence that Dixon owned the

cell phone in question, therefore he had a right to exclude others and he had a

reasonable expectation of privacy in his cell phone. State v. Dixon, 13-09-00445-CR,

2010 WL 3419231 at *5-6 (Tex. App. –Corpus Christi Aug. 27, 2010, pet. Ref’d). The

Corpus Christi Court of Appeals stated that “[a] person has a privacy interest in

information contained in a cellular phone.” Id. at *6(quoting Lemons v. State, 298

S.W.3d 658, 662 (Tex. App. –Tyler 2009, pet. Ref’d) citing United States v. Finley, 477




                                           17
F.3d 250, 259-60 (5th Cir. 2007)); see Riley v. United States, 13-132, 2014 WL 2864483,

___ U.S. ___ (June 25, 2014).

      The trial court abused its discretion in denying Mr. Edwards’ Motion to

Suppress and this constitutes reversible error because the only evidence admitted at

trial that even suggests a robbery was intended came from text messages retrieved

from the overly broad search of the phone.

           ISSUE TWO: The trial court abused its discretion in admitting
                  over objection, text messages that the State claimed to
                  have been authored by Mr. Edwards and an unknown
                  individual, where the evidence was not sufficiently
                  authenticated. There was inadequate circumstantial
                  evidence establishing that such evidence was what its
                  proponent claimed it to be, namely, a message actually
                  sent by Mr. Edwards.


                                     ARGUMENT

      The problem with the text messages that purport to reflect a conversation

between Mr. Edwards and an unknown individual, is that the prosecutor did not take

the reasonable steps that were available to authenticate such evidence, i.e., to lessen

the possibility that the messages came from someone else posing as Mr. Edwards.

The failure of the prosecutor to take the necessary steps to prove that the text

messages were what he claimed them to be, i.e., messages sent by Mr. Edwards from

his cell phone, left open the possibility that the messages in question were not

authentic and were sent by someone else under his name. By allowing the

introduction of an exhibit that had not been properly authenticated under Tex. R.

                                          18
Evid. 901, the trial court abused its discretion and Mr. Edwards suffered harm under

Tex. R. App. P. 44.2(b).

            APPLICABLE LAW, STANDARD OF REVIEW AND DISCUSSION

      The question of whether or not to admit evidence at trial is a preliminary

matter to be decided by the trial court. Tex. R. Evid. 104(a). In order to be

admissible, the evidence in question must of course be relevant. Tex. R. Evid. 401.

The Texas Rules of Evidence define relevant evidence as “evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence.” Id.

      Sometimes the relevancy of the evidence depends upon its source, its identity,

or its connection with a particular person, place, thing, or event, in which case the

proponent of the evidence must authenticate it before it becomes relevant. Angleton v.

State, 971 S.W.2d 65 (Tex. Crim. App. 1998). The proponent meets this threshold

requirement of authenticity by satisfying the trial court, as part of the court’s “gate-

keeping” function under rule 104, that the matter in question is in fact what it is

claimed to be. Tex. R. Evid. 901(a); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim.

App. 2012).    The ultimate question of whether an item of evidence is what the

proponent claims is a question for the fact finder. Id. In a jury trial, the preliminary

question for the trial court to decide is whether the proponent of the proffered



                                          19
evidence has supplied facts that are sufficient to support a reasonable jury

determination that the evidence is authentic. Druery v. State, 225 S.W.3d 491, 502 (Tex.

Crim. App.), cert. denied, 128 S. Ct. 627 (2007); Campbell v. State, No. 03-11-00834-CR,

2012 WL 3793431 at *3 (Tex. App. -Austin August 31, 2012, no pet.). An appellate

court reviews a trial court’s decision as to whether evidence is properly authenticated

for an abuse of discretion. Tienda, 358 S.W.3d at 638.

      In Campbell, supra, the issue was whether the trial court’s introduction of

Facebook messages (allegedly sent by the defendant to the complainant) was an abuse

of discretion because they were not shown to have actually been sent by the

defendant. Thus, the question became whether such evidence had been properly

authenticated. The Austin court made the following general comments about Tex. R.

Evid. 901, which are applicable here:

              Rule 901 of the Texas Rules of Evidence provides a nonexclusive
      list of methods for authentication of evidence. See Tex.R. Evid. 901. For
      example, evidence may be authenticated by testimony from a witness
      with knowledge that a matter is what it is claimed to be. Id. R. 901(b)(1).
      Evidence may also be authenticated by “appearance, contents,
      substance, internal patterns, or other distinctive characteristics, taken in
      conjunction with circumstances.” Id. R. 901(b)(4). In the context of
      communications, the authentication issue that generally arises is whether
      the evidence is sufficiently linked to the purported author. With respect
      to electronic communications-such as e-mails, text messages, and as in
      this case, Facebook-the rules of evidence, including rule 901, are
      considered at least generally “adequate to the task.” See Tienda, 358
      S.W.3d at 638. Printouts of emails, internet chat room dialogues, and
      text messages have all been admitted into evidence when found to be


                                          20
      sufficiently linked to the purported author so as to justify the
      submission to the jury for its ultimate determination. See id. at 639.

      Notwithstanding the above, it is important to note that given the nature of

electronic communication, the mere fact that a communication has come from a

certain electronic source is, without more, not enough to establish that it therefore

must have come from a certain person. In Tienda, supra, which dealt with the

admissibility of what was claimed by the State to be a MySpace page of the defendant,

the Court of Criminal Appeals pointed out:

      However, mindful that the provenance of such electronic writings can
      sometimes be open to question—computers can be hacked, protected
      passwords can be compromised, and cell phones can be purloined—
      courts in other cases have held that not even the prima facie
      demonstration required to submit the issue of authentication to the jury
      has been satisfied. That an email on its face purports to come from a
      certain person’s email address, that the respondent in an internet chat
      room dialogue purports to identify himself, or that a text message
      emanates from a cell phone number assigned to the purported author—
      none of these circumstances, without more, has typically been regarded
      as sufficient to support a finding of authenticity. Tienda, 358 S.W.3d at
      641; see also Tienda, footnote 35 (a list of citations where authentication
      of electronic messages was not found to be adequate, where there were
      no contextual clues to show that the message came both from the
      particular site and from the sender in question).

      In Campbell, supra, the Austin Court of Appeals pointed out a twofold problem

with respect to establishing that a Facebook message came from a specific individual:

      Facebook presents an authentication concern that is twofold. First,
      because anyone can establish a fictitious profile under any name, the


                                          21
      person viewing the profile has no way of knowing whether the profile is
      legitimate. Griffin v. State, 19 A.3d 415, 421 (Md. 2011)(citing David
      Hector Montes, Living Our Lives Online: The Privacy Implications of Online
      Social Networking, J.L. & Pol’y for the Info. Soc’y, Spring 2009, at 507,
      508). Second, because a person may gain access to another person’s
      account by obtaining the user’s name and password, the person viewing
      communications on or from an account profile cannot be certain that
      the author is in fact the profile owner. Id. Thus, the fact that an
      electronic communication on its face purports to originate from a
      certain person’s social networking account is generally insufficient
      standing alone to authenticate that person as the author of the
      communication. See Tienda, 358 S.W.3d at 642. However, the most
      appropriate method for authenticating electronic evidence, as with any
      kind of evidence, “will often depend on the nature of the evidence
      and the circumstance of the particular case.” Id. at 641. Campbell,
      supra, 2012 WL 3793431 at *4.

      There are differences between the Facebook messages in Campbell and the text

messages in this case. First, the messages sent from Campbell’s Facebook account

contained a “unique speech pattern…that Campbell, a native of Jamaica, used in

testifying at trial.” Campbell, supra, 2012 WL 3793431 at *6. No pattern was established

in this case by showing any similarity between the text messages attributed to Mr.

Edwards and his normal way of speaking or writing.

       Anyone in possession of the Mr. Edwards’ cellphone could have posted the

text message. It is not hard to imagine a different outcome in this case, especially with

regard to his conviction of aggravated robbery, if it had turned out that the message

allegedly sent from Mr. Edwards had been sent from someone else. In determining

whether the context of the text messages suggests that they are authentic, i.e., that


                                           22
they were really sent by Mr. Edwards, this Court should remain mindful of what

available steps the prosecutor could have taken…but didn’t bother to take.

       The instant case also differs from Campbell in that whereas the message in

Campbell specifically referenced the criminal incident for which Campbell was on trial,

the text messages in the instant case did not. Campbell was accused of hitting his

girlfriend several times in the face. He specifically alluded to this by stating in the

Facebook message “I should never put my hand on you, who is me to do that to

you.” Campbell, supra, 2012 WL 3793431 at *5. He also specifically indicated in the

message his awareness that he had committed the criminal act he was on trial for

(“don’t lock me up please I am begging you” and “I am guilty what was I thinking”).

In contrast, the text messages here make no specific allusion to any particular location

and do not comport with the evidence otherwise admitted describing the scene and

the complainant who was described as a “lil Mexican” in the text message, but in

actuality is “very tall”. (5 R.R. at 188; 4 R.R. at 94).

       In summary, the trial court abused its discretion in allowing the text messages

into evidence over defense counsel’s objection that there was no proper foundation

and the probative value does not “substantially outweigh the undue prejudice.’ (5

R.R. at 175-180). The trial court’s ruling was not within the zone of reasonable

disagreement and it was error to admit the text messages.




                                             23
                                   HARM ANALYSIS

      Because error in the admission of evidence is non-constitutional, the Appellant

must show that the error affected his substantial rights. Tex. R. App. P. 44.2(b). A

substantial right is affected when the error has a substantial or injurious effect or

influence in determining the jury’s verdict. Rich v. State, 160 S.W.3d 575, 577 (Tex.

Crim. App. 2005). In determining whether the error influenced the jury, or only had a

slight effect, a reviewing court must consider whether the State emphasized the error,

whether the erroneously admitted evidence was cumulative, and whether it was

elicited from an expert. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

      The prosecutor repeatedly referred to the text messages in closing argument.

Without the introduction of the text messages, the State’s case turned entirely upon

the testimony of the Complainant. The text messages formed the main part of the

prosecutor’s closing argument (6 R.R. at 31-33). The jury specifically requested the

text messages during deliberation, (1 C.R. at 483 and 2 C.R. at 41), and the text

messages were not cumulative of other evidence, but in fact the only evidence to

suggest an intended theft. As a result, the error in admitting the text messages was

harmful under Tex. R. App. P. 44.2(b).




                                           24
       ISSUE THREE:     The evidence is legally insufficient because a
                 reasonable doubt exists in the record regarding
                 whether Mr. Edwards was in the course of committing
                 theft at the time he used force against the complainant.

       Under the Texas Aggravated Robbery statute a person commits robbery if, in

the course of committing theft and with intent to obtain or maintain control of the

property, he intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death. Tex. Penal Code § 29.02(a)(2). A person commits

theft if he unlawfully appropriates property with intent to deprive the owner of it.

Tex. Penal Code § 31.03(a). Appropriation is unlawful if it is without the owner’s

effective consent. Tex. Penal code § 31.03(b)(1). A person commits aggravated

robbery if he uses or exhibits a deadly weapon during the commission of robbery.

Tex. Penal Code § 29.03(a)(2).      Thus, Mr. Edwards committed the offense of

aggravated robbery as alleged in the indictment if (a) while in the course of unlawfully

appropriating property, and (b) without Madrazo’s consent (c) with the intent to

deprive him of property, (d) Mr. Edwards (e) intentionally or knowingly (f)

threatened or placed Madrazo in fear of bodily injury or death (g) while using or

exhibiting a deadly weapon.      See Tex. Penal Cod §§ 29.02(a)(2), 29.03(a)(2), §

31.03(a), (b)(1).

       In order to obtain a valid conviction under this statute, the fact finder must

decide that the defendant is guilty “beyond a reasonable doubt,” but, ultimately, the


                                          25
evidence on which the case is decided must be sufficient to support the conviction.

See Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S.

307 (1979).     Evidence is legally insufficient when the “only proper verdict” is

acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42 (1982). The appellate court’s role is that

of a due process safe guard, ensuring only the rationality of the trier of fact’s finding

of the essential elements of the offense beyond a reasonable doubt. Moreno v. State,

755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Although deference is accorded to the

fact finder to weigh the evidence presented and to draw reasonable inferences from

the facts, the appellate court must “ensure that the evidence presented actually

supports a conclusion that the defendant committed” the criminal offense of which

he is accused. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Under

Jackson, there are two circumstances in which evidence is legally insufficient: “(1) the

record contains no evidence, or merely a ‘modicum’ of evidence, probative of an

element of the offense, or (2) the evidence conclusively establishes a reasonable

doubt.

         No witness testified that he attempted to obtain control over their property.

In fact, Deputy Robert Rincon testified that Mr. Edwards was not originally charged

with aggravated robbery because there was no evidence that he ever “demanded any

money.” (4 R.R. at 78). There is some suspicion that Mr. Edwards could have been

there to take property based on text messages that cannot be affirmatively attributed



                                           26
to him, but even the text messages are not conclusive evidence of his intent to

commit theft as alleged in the indictment. The fact finder is “not permitted to draw

conclusions based on speculation.” Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App.

2007). If the evidence at trial raises only a suspicion of guilt, even a strong suspicion,

then that evidence is insufficient. Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim.

App. 2010). Evidence of “suspicion linked to other suspicion” is not enough to

sustain a conviction. Hacker v. State, 389 S.W.3d 860, 874 (Tex. Crim. App. 2014).

      Although Mr. Edwards may have been aggressive in his attempt to enter the

game room, the state chose to charge him with aggravated robbery and the evidence

at trial fails to prove that he intended to obtain or maintain control of any property.

It is impossible to say from the evidence at trial that the acts of Mr. Edwards tended

to effect the commission of aggravated robbery. Because the evidence is insufficient

to find that Mr. Edwards committed the offense of aggravated robbery as alleged in

the indictment he should be acquitted by this court of that offense.

      ISSUE FOUR:      Without some form of factual sufficiency review,
                 Mr. Edwards is deprived of his right to meaningful
                 review of his conviction for aggravated robbery, as
                 guaranteed by the U.S. Constitution and this Court
                 should conclude that the evidence in this case is
                 factually insufficient to support that conviction.

      If a state gives criminal defendants a right to appeal, the process of appellate

review must be consistent with the requirements of due process and equal protection.

See Griffin v. Illinois, 351 U.S. 12, 18 (1956).      The Supreme Court’s decisions


                                           27
concerning access to judicial process reflect both equal protection and due process

concerns. “(I)n the Court’s Griffin-line cases, ‘[d]ue process and equal protection

principles converge.’ …The due process concern homes in on the essential fairness

of the state-ordered proceedings anterior to adverse state action.” M.L.B. v. S.L.J.,

519 U.S. 102, 120 (1996).

      In a case from Texas, the Supreme Court said: “[F]or present purposes, a

distinction between (1) a State that denies permission to raise [a] claim on direct

appeal and (2) a State that in theory grants permission but, as a matter of procedural

design and systemic operation, denies a meaningful opportunity to do so is a

distinction without a difference.” Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013).

      The problem with Texas’ legal-sufficiency review as applied to criminal appeals

post-Brooks is this: the courts of appeal have too often used catch phrases like

“almost total deference” and “any evidence to support the verdict” to deny

meaningful review of whether the State actually satisfied its burden to prove every

essential fact necessary to an offense beyond a reasonable doubt.        The reasonable

doubt standard is “indispensable to command the respect and confidence of the

community in applications of criminal law. It is critical that the moral force of the

criminal law not be diluted by a standard of proof that leaves people in doubt

whether innocent men are being condemned. It is also important in our free society

that every individual going about his ordinary affairs have confidence that his



                                           28
government cannot adjudge him guilty of a criminal offense without a proper

factfinder of his guilt with utmost certainty.” In re Winship, 397 U.S. 358, 364 (1970).

       In Trevino, the Supreme Court concluded that Texas law did not offer a

meaningful opportunity for defendants to present a claim of ineffective assistance of

trial counsel on direct appeal. Because of this problem, which the Court considered

to be structural constitutional error, the Court decided that the defendant was not

procedurally barred from raising a federal habeas claim of ineffective assistance.

Trevino, 133 S.Ct. at 1921.

       In this case, the structural problem relates to how Jackson deferential standard

of a “scintilla of evidence” impairs meaningful review of whether Mr. Edwards was

convicted of aggravated robbery on evidence beyond a reasonable doubt.

       When reviewing courts limit their analysis to the question of whether any

evidence at all supports a jury’s verdict, they can never reach the real question: did

the evidence prove beyond a reasonable doubt that the defendant was guilty? The

“merging” of the legal and factual sufficiency standards of review is not facially

problematic, but, as in Trevino, the systemic operation of the Brooks rule makes it

highly unlikely that a defendant will have a meaningful review of evidentiary

sufficiency issues.

       Even if the evidence were found to be legally sufficient to convict Mr.

Edwards of aggravated robbery, it was not factually sufficient under the pre-Brooks



                                           29
standard, which required the appellate courts to review the evidence in a neutral light,

not in the light most favorable to the verdict. See Clewis v. State, 922 S.W.2d 126, 129

(Tex. Crim. App. 1996), overruled by Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.

2010). Viewing all of the evidence in a neutral light, no rational jury could find

beyond a reasonable doubt that Mr. Edwards had the intent to obtain and maintain

control of the property of the complainant. The evidence was factually insufficient to

support the conviction.




                                          30
                                     PRAYER

       Mr. Edwards prays that this Honorable Court reverse the judgment of the trial

court and order a judgment of acquittal as to the aggravated robbery conviction and

reverse the judgment of the trial court and order a new trial as to the aggravated

assault and felon in possession of a firearm convictions. Or, in the alternative, Mr.

Edwards asks this court to reverse all three convictions and remand to the trial court

for a new trial.

                                              Respectfully submitted,

                                              Alexander Bunin
                                              Chief Public Defender

                                              /s/ Daucie Schindler
                                              Daucie Schindler
                                              State Bar No. 24013495
                                              Public Defender’s Office
                                              Harris County, Texas
                                              Assistant Public Defender
                                              1201 Franklin, 13th Floor
                                              Houston, Texas 77002
                                              Daucie.Schindler@pdo.hctx.net
                                              Tel: 713-274-6717
                                              Fax: 713-368-9278




                                         31
                         CERTIFICATE OF COMPLIANCE

       Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

brief complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.    Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains fewer than 7,142 words printed in a proportionally spaced typeface.

2.    This brief is printed in a proportionally spaced, serif typeface using Garamond

14 point font in text and Garamond 13 point font in footnotes produced by

Microsoft Word Software.

3.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.




                                      /s/ Daucie Schindler
                                       DAUCIE SCHINDLER




                                           32
                         CERTIFICATE OF SERVICE

      I certify that on the 24th day of November, 2015, a copy of the foregoing

instrument has been electronically served upon the Appellate Division of the Harris

County District Attorney’s Office.



                                     /s/ Daucie Schindler
                                      DAUCIE SCHINDLER




                                         33
