                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00412-CR


THOMAS OLIVAS                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


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        FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1376698R

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                            DISSENTING OPINION

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      I must begin my dissent by recognizing the conscientious and scholarly

commitment of the majority to follow the law. I express my disagreement with the

majority based solely on the record before us, in full recognition of the highest

standards of integrity to which the majority is fully committed.
      I must ask, have we learned nothing from Cameron Todd Willingham?1

From Michael Morton?2 The fact that a person could have committed a heart-

wrenching crime is not evidence that would allow a jury to find from the evidence

beyond a reasonable doubt that he did commit that crime, as our state and

federal law requires.3 Willingham, Morton, and an unsettling number of other

persons have been convicted, not because of intended prosecutorial misconduct,

but because the investigation centered exclusively on them early on and sloppy

pseudo-scientific investigation showed the possibility of their guilt.4 In recent

years we have discovered that “scientific evidence” we have relied on to justify

criminal convictions has been repudiated by scientists. In many of these cases,

the investigation focused on a single individual from the beginning, and the junk

science was the “objective evidence” that supported the other evidence that often

amounted to little or no more than suspicion.


      1
      See David Grann, Trial by Fire: Did Texas Execute an Innocent Man?
New Yorker: A Reporter at Large (Sept. 7, 2009), http://www.newyorker.com/
magazine/2009/09/07/trial-by-fire (last visited Dec. 28, 2016).

      2
       See Michael Morton, Getting Life: An Innocent Man’s 25-Year Journey
from Prison to Peace (2014).
      3
       See Tex. Code Crim. Proc. Ann. art. 38.03 (West 1979); Tex. Penal Code
Ann. § 2.01 (West 2011); Jackson v. Virginia, 443 U.S. 307, 317–18, 99 S. Ct.
2781, 2788 (1979).
      4
        See Ex parte Robbins, 478 S.W.3d 678, 691–92 (Tex. Crim. App. 2016)
(granting habeas relief based on newly available scientific evidence); California
Innocence Project, Update: William Richards Released on June 21, 2016!,
Freed Clients, https://californiainnocenceproject.org/read-their-stories/william-
richards/ (discussing reversal of William Richards’s conviction of killing his wife
based on bite-mark evidence) (last visited Dec. 28, 2016).
                                         2
      Although no hair or DNA of Appellant was found on the scene, while hair

and unidentified male DNA was found, the investigation in this case, just as in the

Morton and the Willingham cases, focused only on a single person and relied in

whole or in part on suspect scientific evidence The case now before this court

relies on the following evidence:

      Appellant said he hated Mother because she was going to court to force

him to pay child support. He said he was going to see her that night, and he said

he did not see her that night. His girlfriend Raudry broke up with him because of

Mother and Child. He had scratches on his body. A witness saw a person in a

hoodie in the area of Mother’s apartment near the time the fire broke out.

Appellant liked hoodies. The borrowed car Appellant drove smelled of gasoline.

Investigators opined there was gasoline on Mother’s shorts and on Child. But

mostly they “proved” Appellant was near Mother’s apartment near the time of the

fire because his cell phone pinged off cell towers.

      The Arlington Fire Department received a 9-1-1 call on Sunday, March 20,

2011, just after 10:00 p.m., reporting a fire at an apartment complex. There was

testimony that a mother (Mother) and child (Child) died in the fire and that

gasoline had been used as an accelerant, although Tarrant County Medical

Examiner Dr. Peerwani testified that neither Mother nor Child showed evidence

of smoke inhalation. Mother was stabbed multiple times, and Child died of an

undetermined form of violence. That is, neither Mother nor Child was killed by

the fire. But the emphasis of the evidence appears to have been concentrated


                                         3
on gasoline. Appellant was the purported father who did not want to submit to

paternity testing and did not want to pay child support.

      The majority states that “[t]he dissent emphasizes that neither decedent

showed evidence of smoke inhalation and therefore neither was killed by the fire

yet stresses that the majority inexplicably concentrates on the gasoline.

Common sense dictates we recognize gasoline as a critical connector, the

signature element which ties appellant to the murder scene.”5 Obviously, my

concerns are not artfully expressed. The medical evidence showed that both

Mother and Child were killed before the fire had reached a level that would cause

them to inhale smoke. That means Mother was alive when she was stabbed. It

is logical that eleven stab wounds to a living adult would produce blood spatter

that would reasonably spatter onto the assailant.          If gasoline is “a critical

connector, the signature element which ties appellant to the murder scene,”6 that

signature connects to every person who operates a motor vehicle. There is no

evidence of a gasoline container connected to Appellant. There was a mention

of an odor of gasoline in the borrowed car, but scientific testing dispelled the

speculation that the odor was produced by gasoline. There was no mention of

the odor or presence of gasoline on Appellant’s clothing or shoes.

      Jim Swindell, who managed the State Fire Marshal’s Arson lab during the

investigation of this case, testified that of all the items he tested, only Mother’s

      5
       Majority Op. at 3–4.
      6
       Id. at 4.

                                         4
white shorts and two remnants of clothing found on Child tested positive for

gasoline. No other accelerant was the subject of testing or testimony. Patricia

Eddings of the Tarrant County Medical Examiner’s Office testified about hairs

found on Mother’s body. Some hairs were similar to Mother’s, and some were

similar to an unknown third person. No hairs were similar to Appellant’s. The

hairs were compared to those of no one other than Appellant. Tests for blood

and DNA in Mother’s apartment were difficult because of the fire, but some items

did test positive for Mother’s DNA and “the minor presence of male DNA” that

could not have come from Appellant or Child.7 Kelly Belcher, also of the Tarrant

County Medical Examiner’s Office, examined Mother’s body and Child’s body for

trace evidence.     She also took fingernail clippings from Mother.      Although

Appellant’s body had many scratches, there was no report of the result of any

testing of Mother’s fingernail clippings. There is a suggestion that DNA under the

fingernails would not survive the fire. The hair of the unidentified person and

DNA of an unidentified male did survive, however. Belcher testified that Mother’s

shorts smelled like gasoline and described Mother’s stab wounds. Witnesses

testified to a strong gasoline smell emanating from the car Appellant was driving.

Yet when the areas smelling of “gasoline” were tested, they tested negative for

gasoline. There was speculation that the tests were negative because police

who investigated the interior of the vehicle must not have known how to properly

preserve the evidence.


      7
       Id. at 47.

                                        5
         There was evidence that Mother was using her cell phone and her

computer around 9:00 p.m. on the day of the murders.           FBI special agent

Sedwick testified that he had tracked Appellant’s cell phone on the day of the

murders.     Sedwick claimed that Appellant’s phone was in Arlington near the

intersection of Lamar Boulevard and Collins Street around 6:11 p.m. Six minutes

later, according to Sedwick, Appellant’s phone was within three quarters of a mile

of a cell tower “that covers an area that includes the murder location.”

Specifically, Sedwick said that the cell tower was “[a]pproximately .4 miles” away

from Mother’s apartment.

         Sedwick said that the data demonstrated that Appellant’s phone was

involved in a series of texts and calls from 6:20 p.m. to 6:36 p.m. at this same

tower.     The data also showed that Appellant’s phone was in the same

geographical area initiating calls and texts to and receiving calls and texts from

Mother’s phone between 7:03 p.m. and 9:22 p.m. Sedwick also testified that

there was a call from Mother to Appellant at 7:10 p.m., but no further

communication between the two cell phones until Appellant texted Mother at

10:07 p.m. Sedwick testified that later, between 11:37 p.m. on March 20 and

5:30 a.m. on March 21, Appellant’s phone was in the vicinity of his apartment in

Grapevine.

         We have dealt with cell tower testimony in the past. In Winningham v.

State, Texas Ranger Tracy Murphree obtained an arrest warrant based in part on

his statement that the defendant had made a cell phone call to the complainant


                                        6
from a location “in close proximity to her house.”8 At trial, however, he conceded

that he could tell only that the call had been made somewhere in Arlington but

not which cell tower handled the call or how close to the complainant's house the

cell phone was when the call was made.9

      “General area” and “vicinity” are words that tell us nothing. There is no

evidence of the coverage area of any of the cell towers mentioned by Sedwick or

where in relation to the cell tower, for example, .5 miles south/southeast of the

tower, either cell phone was located.

      Most important, the scientific reliability of cellphone tower evidence is

being challenged in several states of the United States.         The Connecticut

Supreme Court is considering the issue of whether such evidence is mere junk

science.10      State courts in Maryland, Oregon, and Illinois, as well as federal

circuit courts, are questioning whether cellphone tower evidence is reliable or

merely junk science.11 Michael Cherry, chief executive of Cherry Biometrics, in

Falls Church, Virginia, who has testified in successful cases to free people who

were imprisoned based in part on cell tower evidence, has explained that the


      8
        Winningham v. State, 334 S.W.3d 289, 317 (Tex. App.—Fort Worth 2010,
pet. ref’d) (Dauphinot, J., dissenting).
      9
       Id.
      10
       Dave Collins, Associated Press, Connecticut Case Challenges Use of
Cellphone Tower Evidence (Dec. 11, 2016), https://yahoo.com/news/connecticut-
case-challenges-cellphone-tower-evidence-143700641.html (last visited Dec. 28,
2016).
      11
          Id.

                                          7
location of the cell tower does not reflect the location of the cell phone. The cell

phone does not go to the nearest tower. Rather, it goes to the clearest tower

within range.12 Cherry explained, “You could be sitting on your living room couch

and you could make four phone calls and each call would use a different

tower.”13 Cellphone tower evidence requires highly qualified experts testifying to

both the reliability and the relevance of cell tower evidence. No such expert

testified in the case now before this court.

      Appellant had scratches on his body including in areas that would have

been covered by a shirt and claimed that he scratched himself because of a skin

disease. Others said that he had no skin disease, but no one offered evidence of

the age of the scratches. Nor was there evidence of any cuts on his body,

although we are repeatedly provided with explanations that knife-wielding

assailants often get the victim’s blood on themselves and cut themselves

because the blood makes the knife slippery.14 No evidence of Mother’s blood or

DNA was found in Appellant’s apartment.

      What objective evidence is there of Appellant’s guilt? He avoided Mother

and said that he hated her, he did not want to pay child support, and he told lies.

His girlfriend Raudry, with whom he had a daughter, found out about Mother and

Child, and there is evidence that Mother emailed Raudry to tell her that Mother
      12
        Id.
      13
        Id.
      14
         See, e.g., Eguia v. State, 288 S.W.3d 1, 8 (Tex. App.—Houston [1st
Dist.] 2008, no pet.).

                                          8
and Appellant were a couple. Raudry got mad at Appellant and left him. He

denied that any physical violence occurred during the breakup.

      The State bears the burden of proving Appellant’s guilt beyond a

reasonable doubt.15 That is the highest burden of proof recognized by our law. 16

Clear and convincing evidence is not proof beyond a reasonable doubt.17 But

here, we do not even have clear and convincing evidence. If anything, we have

evidence that Appellant could have committed these acts, but we must disregard

the foreign hair found on Mother’s body, the unidentified male DNA in her

apartment, the total absence of anything to connect Appellant to Mother’s

apartment, and the absence of any of Mother’s DNA in Appellant’s apartment or

any vehicle connected to him, despite the fact that he in all reasonable probability

would have had a large amount of blood on him had he inflicted eleven “personal

and brutal” vicious stab wounds on Mother’s torso.

      The evidence connecting Appellant to the murders is the fact that he did

not want to pay child support; evidence of a beefy individual near Mother’s

apartment in a hoodie with no mention of gender, race, or even the color of the

hoodie; the odor of gasoline; and cellphone tower evidence offered with no

scientific support or predicate. The front door of Mother’s apartment was locked

with a deadbolt. It could only have been engaged from inside the apartment. Pry
      15
         See Jackson, 443 U.S. at 309, 99 S. Ct. at 2784.
      16
         See Fuller v. State, 363 S.W.3d 583, 587–88 & n.28 (Tex. Crim. App.
2012).
      17
         See id.

                                         9
marks on the back door of Mother’s apartment indicated the apartment’s back

door was pried open, although it could have been pried open by firemen.

      A civil case requires only proof by a preponderance of the evidence, yet in

a civil medical malpractice case, “[e]ven if an expert uses the phrase ‘reasonable

probability,’ the evidence is not sufficient when the substance of the expert

testimony raised only mere possibilities, speculation, and surmise.”18 In the case

sub judice, we have nothing more than evidence that Appellant is not a stand-up

guy and could have committed the offense. How this evidence rises to proof

beyond a reasonable doubt is beyond not only my comprehension but even my

imagination.

      I must therefore respectfully dissent from the majority opinion.




                                                   /s/ Lee Ann Dauphinot
                                                   LEE ANN DAUPHINOT
                                                   JUSTICE


PUBLISH

DELIVERED: December 30, 2016




      18
      Miller v. Mullen, No. 06-15-00059-CV, 2016 WL 3475653, at *8 (Tex.
App.—Texarkana June 24, 2016, no pet.).
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