                  PD-1022-15

                  NO._________________

                        IN THE

            COURT OF CRIMINAL APPEALS

                       OF TEXAS



                   DEVIN GARDNER
                      Petitioner

                           v.

                  THE STATE OF TEXAS
                       Respondent



         Petition is in Cause No.1311335D from
Criminal District Court No. Two of Tarrant County, Texas,
          and Cause No. 02-14-00459-CR in the
    Court of Appeals for the Second District of Texas



      PETITION FOR DISCRETIONARY REVIEW


                                Abe Factor
                                TBN: 06768500
                                Factor, Campbell & Collins
                                Attorneys at Law
                                5719 Airport Freeway
                                Phone: (817) 222-3333
                                Fax: (817) 222-3330
                                Email: lawfactor@yahoo.com
August 11, 2015                 Attorneys for Petitioner
                                Devin Gardner
               IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties to the trial court’s final
judgment, as well as the names and addresses of all trial and appellate
counsel.

Trial Judge:                     Honorable Louis Sturns, presiding
                                 judge, 213th Criminal District Court of
                                 Tarrant County

Appellant:                       Devin Gardner

Appellant’s Trial Counsel:       Abe Factor
                                 TBN: 06768500
                                 Factor, Campbell & Collins
                                 Attorneys at Law
                                 5719 Airport Freeway
                                 Fort Worth, Texas 76117

                                         AND

                                 Elizabeth Cortright
                                 TBN: 24066884
                                 Attorney at Law
                                 110 East Weatherford
                                 Fort Worth, Texas 76102

Appellant’s Counsel              Abe Factor
on Appeal:                       TBN: 06768500
                                 Factor, Campbell & Collins
                                 Attorneys at Law
                                 5719 Airport Freeway
                                 Fort Worth, Texas 76117

Appellee:                        The State of Texas

Appellee’s Trial Counsel:        Kacey Fickes
                                 TBN: 24060684
                                 Pamela Bogges

                                    ii
                     TBN: 24068092
                     Assistant District Attorneys
                     401 W. Belknap
                     Fort Worth, Texas 76196

Appellee’s Counsel   Debra Windsor
on Appeal:           TBN: 00788692
                     Assistant District Attorney
                     401 W. Belknap
                     Fort Worth, Texas 76196




                       iii
                                   TABLE OF CONTENTS
                                                                                                           page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1

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

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 1

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

REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.       The Court of Appeals erred when it held that the trial
         court did not abuse its discretion by admitting the cell
         phone records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         A.        Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         B.        Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

         C.        Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

         D.        Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

         E.        Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16


                                                       iv
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                     v
                         INDEX OF AUTHORITIES

Cases                                                                         page

Alexander v. State,
      88 S.W.3d 772 (Tex. App.-Corpus Christi 2002, pet. ref’d).16, 18

Casey v. State,
      215 S.W.3d 870 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . 15

Gardner v. State,
     02-14-00459-CR, 2015 WL 4652718 (Tex. App.–
            Fort Worth, August 6, 2015, no. pet. h.)
                  (mem. op., not designated for publication).1-2, 6, 7

Johnson v. State,
      967 S.W.2d 410 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . 17

Jones v. State,
       119 S.W.3d 766 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . 18

King v. State,
      953 S.W.2d 266 (Tex. Crim. App. 1997). . . . . . . . . . . . . . 16-17, 18

Layton v. State,
      280 S.W.3d 235 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . 8, 9

State v. Mechler,
       153 S.W.3d 435 (Tex. Crim. App. 2005). . . . . . . . . 9-10, 14, 15, 16

Montgomery v. State,
     810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh’g). . . 8, 9, 13

Moreno v. State,
     858 S.W.2d 453 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . 9

Rubalcado v. State,
      424 S.W.3d 560 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . . 7


                                          vi
Santellan v. State,
       939 S.W.2d 155 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . 9

Tienda v. State,
      358 S.W.3d 633 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . 7

Statutes

T EX. P ENAL C ODE A NN. § 29.03(a)(2) (West 2011). . . . . . . . . . . . . . . . . . 1

Court Rules

T EX. R. A PP. P. 44.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 6, 18

T EX. R. E VID. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

T EX. R. E VID. 402. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

T EX. R. E VID. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9




                                                     vii
         STATEMENT REGARDING ORAL ARGUMENT

      Because Petitioner does not believe that oral argument will

materially assist the Court in its evaluation of matters raised by this

pleading, Petitioner respectfully waives oral argument.

                    STATEMENT OF THE CASE

      On March 4, 2013, Appellant Devin Gardner (“Mr. Gardner” or

“Appellant”) was indicted for the first degree felony offense of

aggravated robbery with a deadly weapon, alleged to have occurred on

December 23, 2012. (C.R. 6); see T EX. P ENAL C ODE A NN. § 29.03(a)(2)

(West 2011). A trial was held in the 213th Criminal District Court of

Tarrant County, the Honorable Louis Sturns, presiding, on September

15, 16, 17 &18, 2014. (II, III, IV & V R.R. passim). The jury found Mr.

Gardner guilty as charged in the indictment. (III R.R. 152). Punishment

was to the trial court, which sentenced Mr. Gardner to twenty-five (25)

years incarceration in the Texas Department of Criminal Justice. (V R.R.

24; C.R. 125). Timely Notice of Appeal was filed on September 18, 2014.

(C.R. 131).

              STATEMENT OF PROCEDURAL HISTORY

      The opinion of the Second Court of Appeals Affirming Mr.

Gardner’s conviction was handed down on August 6, 2015. See Gardner

                                   1
v. State, 02-14-00459-CR, 2015 WL 4652718 (Tex. App.–Fort Worth,

August 6, 2015, no. pet. h.) (mem. op., not designated for publication).

                     GROUNDS FOR REVIEW

                   GROUND FOR REVIEW ONE

I.    The Court of Appeals erred when it held that the trial court did
      not abuse its discretion by admitting the cell phone records.

                      REASONS FOR REVIEW

1.    The decision by the Second Court of Appeals has decided an
      important question of state law in a way that conflicts with the
      applicable decisions of the Court of Criminal Appeals.

2.    The Second Court of Appeals has so far departed from the
      accepted and usual course of judicial proceedings, or so far
      sanctioned such a departure by a lower court, as to call for an
      exercise of the Court of Criminal Appeals’ power of supervision.

                            ARGUMENT

      Because this petition is predicated upon error by the Second

Court of Appeals in its review of Mr. Gardner’s complaint on appeal,

a review of the pertinent evidence presented and events which

transpired below is in order.

      Facts

      On the night of December 23, 2012, Joe’s Food Mart in Benbrook,

Texas, was robbed by three men with bandannas covering their faces,




                                   2
two of whom were armed.1 (III R.R. 19). The clerk who was working

that night at Joe’s Food Mart, Hisi Tamraker,2 was never asked to, nor

ever identified Mr. Gardner as one of the robbers at trial. (III R.R. 16-

41).

         On the night of the robbery, Joe’s Food Mart had a surveillance

camera system, which recorded the robbery. (III R.R. 25, 30; VI R.R. St.

Ex. 11). A clip from that surveillance video was run on the local news.

(III R.R. 86). Students at the school Mr. Gardner attended, Milburn

Academy, allegedly recognized Mr. Gardner on that news clip, and

notified Laura Batik, who was Mr. Gardner’s basketball coach at

Milburn Academy. (III R.R. 90). Ms. Batik then located the surveillance

video on the internet and viewed it for herself. (III R.R. 90). Ms. Batik

testified at trial that when she viewed the video on the internet, she

recognized Mr. Gardner as one of the robbers from the surveillance

video and called Crimestoppers, and eventually the police. (III R.R. 91-

92). At trial Ms. Batik identified the person depicted in State’s Exhibits




1
 There was some evidence admitted at trial that one of the robbers was
armed with a weapon that might have been an Uzi machine gun. (III R.R. 65).
2
    Mr. Tamraker was also the owner of Joe’s Food Mart. (III R.R. 18).

                                       1
13, 14, 15 and 20 as Mr. Gardner.3 (III R.R. 93). With the exception of

Ms. Batik, no other witness at trial was able to identify Mr. Gardner as

one of the robbers depicted in the surveillance video from the Joe’s

Food Mart robbery.

       At trial, the state was allowed to enter into evidence cell phone

records purported to belong to telephones used by Mr. Gardner. (III

R.R. 106, 108, 112 & 127; VI R.R. St. Exs. 24, 25, 27 & 28).4 The state

presented cell phone records through the testimony of Detective

Stephie Phillips of the Fort Worth Police Department. (III R.R. 96).

Outside the presence of the jury, defense counsel took Detective

Phillips on voir dire, where it was revealed that once Mr. Gardner

became a suspect in the Joe’s Food Mart robbery, Detective Phillips had

discovered that Mr. Gardner–who was on probation in Tarrant

County–had given a cell phone number to his probation officer as a

number where he could be contacted. (III R.R. 101-02). Detective

Phillips then served a search warrant on the service provider of that

telephone number, thereby obtaining those records. (III R.R. 97).



3
 State’s Exhibits 13, 14, 15 and 20 are still photos of one of the robbers which
were extracted from one of the surveillance videos. (III R.R. 69-72).
4
 State’s Exhibit 24 was admitted for the record only. State’s Exhibits 25, 27
and 28 are individual pages excerpted from State’s Exhibit 24.

                                       2
During the voir dire examination, it was revealed that the phone

account actually belonged to a Shalonda Benjamin. (III R.R. 98-99). It

was further revealed that there were no witnesses who had personal

knowledge that Mr. Gardner ever possessed either of the phones

attached to the account. (III R.R. 100). Defense counsel objected to the

admissibility of the cell phone records on the grounds that they had not

been sufficiently connected to Mr. Gardner. (III R.R. 104-05, 108, 109,

112, 113).5 Back in front of the jury, during the state’s examination of

Detective Phillips in reference to the cell phone records, it was revealed

that the phone number allegedly belonging to Mr. Gardner had sent

texts such as: “I’m fina hit a lick,” which in Detective Phillips opinion

referenced committing a robbery (III R.R. 113-14; VI R.R. St. Ex. 28); that

the sender had sent a text indicating that he’d seen himself on the news

on a date a few days after the robbery (III R.R. 115); and that Devin

Gardner’s name was included in the body of some outgoing as well as

incoming texts. (III R.R. 126).

       The state rested after Detective Phillips’ testimony. (III R.R. 127).

The defense thereafter rested without presenting any evidence at guilt-


5
 The trial court agreed that the objection to the cell phone records had been
a running objection. (III R.R. 113).

                                     3
innocence. (III R.R. 129). The jury found Mr. Gardner guilty as charged

in the indictment. (III R.R. 152).

              GROUND FOR REVIEW ONE (Restated)

I.    The Court of Appeals erred when it held that the trial court did
      not abuse its discretion by admitting the cell phone records.

      A.     Opinion Below

      The Second Court of Appeals correctly identified the abuse of

discretion standard of review applicable to the trial court’s admission

of the contested evidence. See Gardner, 2015 WL 4652718 at *1.

However, the court then erroneously applied that test.

      Additionally, the court of appeals cited factual evidence

supporting the admission of the cell phone records which had not been

admitted at the time that the trial court made its ruling. The challenged

cell phone records came from an account that belonged to an

individual named Shalonda Benjamin. Who that person was or her

relationship to Mr. Gardner was not explored in any way in the hearing

addressing the admission of the records. (III R.R. 96-102). Although an

individual named Shalonda Williams testified at punishment that she

was Mr. Gardner’s mother, she did not testify at guilt-innocence, nor

was there any evidence admitted at any time in the trial that Shalonda


                                     4
Williams was previously or also known as Shalonda Benjamin.

      In its opinion, the court of appeals stated “[t]he name listed for

the number’s account was Shalonda Benjamin, Gardner’s mother, but the

subscriber was listed as Gardner.” Gardner, 2015 WL 4652718 at *1

(emphasis added). By doing so, the court of appeals has sua sponte

added a critical piece of evidence linking the contested phone records

to Mr. Gardner. Restated, the court of appeals either misunderstood the

quantum of evidence the state presented at trial in its attempt to prove

up the relevance of the records, or mistakenly believed that evidence

admitted long after the contested evidentiary ruling could be used to

post hoc support that ruling. See Rubalcado v. State, 424 S.W.3d 560, 567

(Tex. Crim. App. 2014)(“When the question is whether evidence was

improperly admitted, an appellate court may consider only evidence

that was before the trial court at the time of its ruling unless the issue

was consensually relitigated at a later point in time.”)

      B.     Standard of Review

      A trial court’s decision to admit or exclude evidence is reviewed

for an abuse of discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex.

Crim. App. 2012). As long as the trial court’s ruling is “within the zone



                                    5
of reasonable disagreement,” an appellate court will not disturb the

ruling. Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1991) (op. on reh’g)).

       C.     Controlling Law

       Prior to the admission of the cell phone records, defense counsel

objected on Rules 401 and 403 grounds.6 See T EX. R. E VID. 401, 403.

       Relevant evidence is that which has any tendency to make the

existence of any consequential fact more or less probable than it would

be without the evidence. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim.




6
 Prior to admission of State’s Exhibit 24, counsel stated: “I object because
whatever is in there is not probative of anything, but it is - - it - - it can be
highly inflammatory.” (III R.R. 102).

Before State’s Exhibit 25 was admitted, counsel stated: “We object on the
basis of the previous grounds. And we also object on the basis of the fact that
no witness has tied - - has - - has indicated that either Devin Gardner made
these messages or the phone was in his - - his possession at the time it was
done.” (III R.R. 108).

Prior to the admission of State’s Exhibit 27, the following occurred:
MR. FACTOR: Judge, I‘m assuming I have a continuing objection. I - - we’ve
objected to the admission of these records, and we’ve objected on specific
basis, so I‘m assuming my objection is continuing.
THE COURT: Your objection is continuing. Overruled. (III R.R. 113).

Before the admission of State’s Exhibit 28, counsel stated: “We have no
additional objections other than those we’ve made, but we withdraw our
extraneous - - extraneous information objection because the extraneous
information has been removed.” (III R.R. 127).

                                       6
App. 2009) (citing Tex. R. Evid. 401). It is important, when determining

whether evidence is relevant, that courts examine the purpose for

which the evidence is being introduced. Id. (citing Moreno v. State, 858

S.W.2d 453 (Tex. Crim. App. 1993). It is critical that there is a direct or

logical connection between the actual evidence and the proposition

sought to be proved. Id.

      Relevant evidence may be excluded by the trial court under Rule

403 if its probative value is substantially outweighed by the danger of

unfair prejudice from its admission. T EX. R. E VID. 403. There is a

presumption that relevant evidence is more probative than prejudicial.

Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). The

opponent of the evidence has the burden to demonstrate that its

prejudicial effect substantially outweighs its probative value.

Montgomery, 810 S.W.2d at 377. If the opponent of the evidence lodges

an objection based on Rule 403, the trial court must weigh the probative

value of the evidence against the potential for unfair prejudice. Id. at

389. The criteria to be used in ruling on the objection include the

following: (1) the probative value of the evidence; (2) the potential the

evidence has to impress the jury in an irrational but nevertheless

indelible way; (3) the time needed to develop the evidence; and (4) the

                                     7
proponent’s need for the evidence to prove a fact of consequence. State

v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).

      D.     Application

      Here, the entirety of the cell phone records were admitted for the

record only as State’s Exhibit 24. (III R.R. 105). However, State’s

Exhibits 25, 27, and 28 were admitted for all purposes and are extracts

from State’s Exhibit 24. (III R.R. 108, 111-13, 128). Although State’s

Exhibit 24 was admitted only for the record, on direct the State

questioned Detective Phillips regarding text messages purported to be

from Mr. Gardner which are included in State’s Exhibit 24. Specifically,

the following transpired:

Q. And on December 17, 2012, does the Defendant engage in a text
message conversation with someone about a firearm?

MR. FACTOR: I - - I object, Your Honor, on - - based - - I object to the
way the question is - - is formed because this witness has no personal
knowledge of who - - who created the text message or who had
possession of the - - of the phone at the time the text message was made
even if the Court’s going to admit the contents of the text message.

THE COURT: You can rephrase the question. Go ahead.

Q. ( By Ms. Boggess) Is there a text message conversation between 817-
986-1021 and 682- 203- 5798 about something called an “Uz”?

A. Yes, ma’am.

Q. And does the 817 number discuss having fired something called an

                                   8
Uz?

A. Yes, ma’am.

Q. In what direction does that 817 number talk about having fired
something called an Uz?

A. Into the ground.

Q. Does the 817 number also send a text message to that 682 number
about fully automatic or fully auto?

A. Yes, ma’am.

Q. In your experience as a robbery detective, can you - - what do you
believe these people are talking about?

MR. FACTOR: I object. I object. That’s speculation. And this witness
hasn’t been qualified as an expert.

THE COURT: All right. Overruled. Go ahead.

Q. ( By Ms. Boggess) What do you believe they’re talking about?

A. A fully automatic handgun or firearm.

Q. What’s an Uz?

A. An Uzi, an Israeli gun, firearm.

Q. What does it look like?

A. It’s a small box- like weapon. I believe it’s a 9 millimeter. It' s about
like this, holds multiple rounds. It’s usually fully automatic.

(III R.R. 107-08).

Later, with the same witness:


                                      9
Q. Detective, on page 17 of the text message phone record on December
23, 2012 at 18: 23: 21, does Devin Gardner’s cell phone, that 817
number, send a text message?

A. Yes, ma’am.

Q. What did he send?

A. Do you want it verbatim?

Q. If you can.

A. " I’m fina hit a lick.”

MR. FACTOR: Judge, I’m assuming I have a continuing objection. I - -
we’ve objected to the admission of these records, and we've objected on
specific basis, so I’m assuming my objection is continuing.

THE COURT: Your objection is continuing. Overruled.

Q. ( By Ms. Boggess) You may continue.

A. “I’m fina hit a lick Y - - WYD.”

Q. Have you ever heard the phrase “hit a lick” before?

A. Yes, ma’am. It refers in street vernacular to committing a robbery.

(III R.R. 113-14).

Further in the record, with the same witness:

Q. On December 28, 2012, at - - just one moment - on December 28,
2012, at 12: 46: 49, does that same number, Devin Gardner’s 817
number, does that phone number send a text message indicating that,
“We done hit a store”?

A. Yes, ma’am.


                                      10
(III R.R. 114).

Q. Detective, I’m showing you State’s Exhibit 28, which is a portion of
the documents previously admitted for record purposes only in State’s
Exhibit 24. Does that document contain the text message we discussed
where Devin Gardner says he’s going to hit a lick?

A. Yes, ma’am, it is.

(III R.R. 114).

Q. ( By Ms. Boggess) Detective, on December 28, 2012, does the
Defendant send a text message indicating that he’d seen himself on the
news?

A. Yes, ma’am.

(III R.R. 115).

The State later sought and was granted the admission of State’s Exhibit
28 only for the text message from phone number 817-986-1021 sent on
December 23, 2012 which stated “im fina hit a lick wyd[.]”

(III R.R. 127).

       Unquestionably, the text messages sent from phone number 817-

986-1021 are incriminating and damaging to Mr. Gardner, and are

without a doubt inflammatory and prejudicial. See e.g., Montgomery, 810

S.W.2d at 390 (there is a potential danger that the extraneous bad act

may “impress the jury in some irrational but nevertheless indelible

way”). But this is only because the State was allowed to represent the

messages as being sent from a phone used by Mr. Gardner. Because the


                                  11
State was never able to sufficiently show that Mr. Gardner authored the

texts, the texts message evidence was not relevant to the trial of Mr.

Gardner. See Tex. R. Evid. 401. The State was only able to connect the

phone to Mr. Gardner by conjecture and inference. Due to the

weakness of the link the Mr. Gardner, the evidence was not relevant to

the trial of Mr. Gardner, and was not admissible due to that lack of

relevance. See T EX. R. E VID. 402.

       But the evidence also fails admissibility under Rule 403. Outside

the presence of the jury, Detective Phillips testified that she requested

the records for 817-986-1021 as that was a number that Mr. Gardner

had given to his probation officer as a number where he could be

contacted. (III R.R. 101-02). The actual phone account belonged to

someone named Shalonda Benjamin. (III R.R. 98). Who Shalonda

Benjamin was or how that person was connected to Mr. Gardner was

never established at trial. It was however, established at trial that there

were multiple phones and numbers attached to the account, and that

the State had no witnesses with personal knowledge that 817-986-1021

was ever used by Mr. Gardner. (III R.R. 99-100). Thus, the evidence had

little probative value of anything concerning Mr. Gardner. See Mechler,

153 S.W.3d at 440. This factor strongly points toward inadmissibility.

                                      12
      Further, the potential the evidence has to impress the jury in an

irrational but nevertheless indelible way. See id. Most evidence is

prejudicial to an opponent. See Casey v. State, 215 S.W.3d 870, 883 (Tex.

Crim. App. 2007). “Evidence is unfairly prejudicial only when it tends

to have some adverse effect upon a defendant beyond tending to prove

the fact or issue that justifies its admission into evidence.” Id. Here,

whomever sent the text messages discussed above could be reasonably

suspected of firing an Uzi, planning a robbery and then later

committing same, and being proud to have seen himself on the news

reports regarding the robbery. The strikingly distasteful “evidence”

represented by the text messages was very likely to inflame the jury

irrationally. This factor tends toward inadmissibility. See Mechler, 153

S.W.3d at 440.

      Admittedly, the State did not require an unduly extended

amount of time to introduce the inflammatory text messages. This

factor does not weigh toward inadmissibility. See id.

      Nor did the State have a great need for the text message

evidence. Primarily, the State would have made better use of evidence

which was actually connected to Mr. Gardner in a less tenuous manner.

Though somewhat incredible, the State already had eyewitness

                                   13
testimony from Laura Batik–a person who knew Mr. Gardner from

daily interaction on an extended basis. It cannot be understated how

little the text message evidence served to prove a fact of consequence.

Mr. Gardner was the defendant. It was reasonable to infer that

whomever authored the texts at issue most likely was involved in some

criminal activity at some point, though whether that person was Mr.

Gardner was not supported. This factor strongly weighs toward

inadmissibility. See id. The trial court erred in admitting the phone and

text message evidence. Id.

      E.     Harm Analysis

      Error in the admission of prejudicial evidence is not one of

constitutional dimensions; therefore, appellate courts will disregard the

error unless it affected the defendant’s substantial rights. See T EX. R.

A PP. P. 44.2(b); see also Alexander v. State, 88 S.W.3d 772, 779 (Tex.

App.-Corpus Christi 2002, pet. ref’d) (holding that the admission of a

.357 magnum revolver found with the defendant at the time of his

arrest had a substantial and injurious effect on the jury where the only

other evidence of the defendant’s identity as the killer was the

questionable testimony of the eye-witness). A substantial right is

affected when the error had a substantial and injurious effect or

                                   14
influence in determining the jury’s verdict. King v. State, 953 S.W.2d

266, 271 (Tex. Crim. App. 1997) (citations omitted). A criminal

conviction should not be overturned for non-constitutional error if the

appellate court, after examining the record as a whole, has fair

assurance that the error did not influence the jury, or had but a slight

effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

      This was not a case where there was overwhelming evidence of

guilt. The only direct evidence connecting Mr. Gardner to the robbery

was the testimony of Laura Betik, who claimed she was able to

recognize Mr. Gardner from the television broadcast of the surveillance

system video recording. Her testimony failed to adequately explain

how she was able to identify Mr. Gardner even though his face was

covered by a bandanna at all times during the robbery. Without the

inflammatory and unfairly prejudicial “evidence” represented by the

telephone records, the jury would have been left with the task of

evaluating whether Laura Batik’s incredible talent at identification was

sufficient to find that Mr. Gardner was actually one of the robbers

depicted in the video.

      The text messages from the phone allegedly belonging to Mr.

Gardner had the practical effect of admitting every element of the

                                   15
robbery–nearly an actual confession if believed by the jury to have

come from Mr. Gardner. The Court of Criminal Appeals has opined

that a defendant’s confession has a profound impact on the jury. See

Jones v. State, 119 S.W.3d 766, 783 (Tex. Crim. App. 2003). The graphic

nature of the admissions detailed in the text messages in all likelihood

had an appreciable effect on the jury. See id. at 417. In actuality, the jury

responded to the vivid, violent, and criminal nature of the texts by

convicting whomever it believed sent the texts–in this case Mr.

Gardner. The erroneous admission of the phone records had a

substantial and injurious effect or influence in determining the jury’s

verdict. See King, 953 S.W.2d at 271. The error therefore affected a

substantial right of Mr. Gardner. See T EX. R. A PP. P. 44.2(b); see also

Alexander, 88 S.W.3d at 779. Ergo, the court of appeals should have

reversed Mr. Gardner’s conviction.

                         PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully

prays that this Court grant discretionary review and allow each party

to fully brief and argue the issues before the Court of Criminal

Appeals, and that upon reviewing the judgment entered below, that




                                     16
this Court reverse the opinion of the Second Court of Appeals and

reverse the conviction entered below.

                                        Respectfully submitted,

                                         /s/Abe Factor
                                        Abe Factor
                                        TBN: 06768500
                                        Factor, Campbell & Collins
                                        Attorneys at Law
                                        5719 Airport Freeway
                                        Fort Worth, Texas 76117
                                        Phone: (817) 222-3333
                                        Fax: (817) 222-3330
                                        Email: lawfactor@yahoo.com
                                        Attorneys for Petitioner
                                        Devin Gardner

                 CERTIFICATE OF COMPLIANCE

       I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
4,510.

                                        /s/Abe Factor
                                        Abe Factor


                     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Tarrant County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 10th
day of August , 2015.

                                        /s/Abe Factor
                                        Abe Factor

                                   17
                          APPENDIX

1.   Opinion of the Second Court of Appeals.




                               18
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-14-00459-CR


DEVIN GARDNER                                                       APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1311335D

                                    ----------

                          MEMORANDUM OPINION 1

                                    ----------

      Appellant Devin Gardner appeals his conviction for aggravated robbery

with a deadly weapon and 25-year sentence. Because we conclude the trial

court did not abuse its discretion by admitting cell-phone records, we affirm the

trial court’s judgment.




      1
       See Tex. R. App. P. 47.4.
       On December 23, 2012, shortly before 8:00 p.m., three men entered a

convenience store and forced the owner to the floor at gunpoint. The first man

had a red bandana covering the bottom half of his face and was carrying a gun.

The second man was wearing a grey, hooded sweatshirt, with the hood up, had a

bandana covering the bottom part of his face, and was carrying a long gun. The

third man, who appeared to be unarmed, also had a hood over his head and a

bandana covering the bottom of his face. The robbers took the store’s cash and

quickly left.

       Soon after the robbery, Laura Betik, a teacher at a charter high school,

watched a surveillance video of the robbery after it was shown on a television

news program. Betik had been Gardner’s basketball coach at school and had

tutored him weekly in English. Betik estimated she spent on average of six hours

a week with Gardner during basketball season and would see him daily in the

halls of the school, which was “very small.” Based on the first man’s eyebrows,

his hair cut, his body build, and his predilection for wearing red, 2 Betik was able

to identify the first man on the surveillance video as Gardner.

       Based on Betik’s identification, police officers obtained a search warrant

for cell-phone records for a number Gardner previously had reported to his

community-supervision officer as his number. The warrant requested records for


       2
        Not only was Gardner generally known to wear red, a picture from his
Facebook account showed him wearing a red bandana covering the bottom half
of his face.


                                         2
a one-month period surrounding the December 23, 2012 robbery: December 16,

2012 to January 10, 2013.     The name listed for the number’s account was

Shalonda Benjamin, Gardner’s mother, but the subscriber was listed as Gardner.

Six days before the robbery, texts from the number discussed having and

shooting an Uzi, which is a longer, automatic handgun. A text message from the

number sent approximately one hour before the robbery stated, “im fina hit a

lick,” which meant the person sending the text was about to commit a robbery.

At trial, the State introduced the text messages into evidence, and Gardner

objected on the bases that they had not been sufficiently connected to him such

that they were relevant and were unfairly prejudicial. The trial court overruled

Gardner’s objections and admitted the cell-phone records into evidence.

      Gardner’s sole argument on appeal is that the cell-phone records were

erroneously admitted because they were not relevant and unfairly prejudicial.

Gardner’s relevance complaint is based on his assertion that the cell-phone

number was insufficiently connected to him; thus, the texts were not probative to

any fact of consequence. See Tex. R. Evid. 401. Although Gardner does not

specifically attack whether the records were properly authenticated under rule

901, the issue of authentication necessarily arises when the relevancy of the

evidence depends upon its connection to a particular person. See Tex. R. Evid.

901(a); Dering v. State, No. 11-13-00076-CR, 2015 WL 1472013, at *2 (Tex.

App.—Eastland Mar. 26, 2015, no pet.); Campbell v. State, 382 S.W.3d 545,

548–49 (Tex. App.—Austin 2012, no pet.).          Authentication is a condition


                                       3
precedent to admissibility, and the trial court’s determination of admissibility is a

preliminary one. See Tex. R. Evid. 104, 901(a); Tienda v. State, 358 S.W.3d

633, 638 (Tex. Crim. App. 2012). We review the admission of evidence for an

abuse of discretion, which mandates deference to a trial court’s ruling as long as

it was within the zone of reasonable disagreement. See Tienda, 358 S.W.3d at

638.

       Although “cell phones tend to be personal and user-specific,” a “cell-phone

number does not necessarily establish the identity of the user at a particular

moment in time with the same definitiveness that fingerprints, signatures,

photographs, or DNA may establish the identity of the perpetrator of a crime”

because “cell phones can be purloined.”         Butler v. State, 459 S.W.3d 595,

601 (Tex. Crim. App. 2015); Tienda, 358 S.W.3d at 641. Accordingly, evidence

that a cell-phone number is associated with a purported sender, standing alone,

may be too attenuated.       See Butler, 459 S.W.3d at 601.        But the test for

authenticity, and thus relevance, is a low bar and requires only a threshold

showing that would be sufficient to support a finding that the matter in question is

what its proponent claims. Campbell, 382 S.W.3d at 549. “In cases where a

sponsoring witness may testify to an association between a cell-phone number

and a purported author [of a text message from that number], other evidence

may be available that might bridge the logical gap and permit a proper inference

that the purported author sent the message.” Butler, 459 S.W.3d at 602. For

example,    the   text   message’s   content,   considered    together   with   other


                                         4
circumstances, may support a conclusion that a text message was indeed sent

by the purported author. See id.

      In isolation, a cell phone number is in some respects similar to a
      return address on a letter. If the return address is the location where
      the purported author happens to live, it may suggest that the person
      who lives at the address is the author of the letter. Or it might not—
      at least on its own, if multiple people happen to live at or have
      access to that same address. But a letter bearing the return address
      of a purported author, combined with other circumstances including
      its appearance and contents, may be sufficient to authenticate a
      letter as having been sent by the person purported to be its author.

Id. at 601–02.   A court’s initial determination of whether evidence has been

sufficiently authenticated to be admissible is dependent on the facts and

circumstances of each case. Tienda, 358 S.W.3d at 639.

       In this case, Gardner reported the cell-phone number as his own number

to his community-supervision officer. Gardner was listed as the subscriber for

the number. Ten days before the robbery occurred, a text from the number

discussed having and shooting a gun similar to one of the guns seen in the

surveillance video from the robbery.        A text from that same number sent

approximately one hour before the robbery showed that the sender was planning

to commit a robbery. Betik, who was very familiar with Gardner, was able to

positively and confidently identify Gardner as one of the robbers on the

surveillance video. We conclude that the cell-phone records were authenticated

through circumstantial evidence such that the number could be sufficiently

connected to Gardner, rendering the records relevant and admissible under rules

401 and 901. See Tex. R. Evid. 401, 901(a); Butler, 459 S.W.3d at 603–05;


                                        5
Jackson v. State, Nos. 05-14-00274-CR, 05-14-00275-CR, 2015 WL 3797806, at

*3–4 (Tex. App.—Dallas June 17, 2015, no pet. h.) (mem. op., not designated for

publication). We overrule this portion of Gardner’s first point.

         Gardner also contends that the cell-phone records, even if relevant, were

unfairly prejudicial and inadmissible. See Tex. R. Evid. 403. Relevant evidence

is presumed to be more probative than prejudicial, and such evidence should be

excluded under rule 403 only if there is a “clear disparity between the degree of

prejudice of the offered evidence and its probative value.”        Conner v. State,

67 S.W.3d 192, 202 (Tex. Crim. App. 2001). It is important to note that the rule

prohibits the admission of evidence carrying a danger of unfair prejudice. Unfair

prejudice justifying exclusion means more than a tendency to injure or prejudice

a defendant, which of course is the point of introducing evidence in the first

place, but refers to an undue tendency to suggest a decision on an improper

basis.    See Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999);

1 Steven Goode et al., Texas Practice Series: Guide to the Texas Rules of

Evidence § 403.2 (3d ed. 2015). In making a rule 403 determination, a trial court

is to balance many factors including the probative force of the evidence, the

State’s need for the evidence, any tendency to suggest a decision on an

improper basis or confuse the jury, and the likelihood that the presentation of the

evidence will consume an inordinate amount of time. See Gigliobianco v. State,

210 S.W.3d 637, 641–42 & n.8 (Tex. Crim. App. 2006).




                                          6
      In this case, Betik’s in-court identification of Gardner, while confidently

given, was based on a video where the bottom half of the man’s face was

covered by a bandana, which shows the State’s need for the cell-phone records.

The State did not spend an inordinate amount of time at trial developing the cell-

phone evidence, and there is no record indication that the admission of the

records resulted in jury confusion or an improper verdict. We conclude that there

was not a clear disparity between the degree of prejudice arising from admission

of the cell-phone records and their probative value. Thus, the trial court did not

abuse its discretion by admitting the evidence over Gardner’s rule 403 objection.

See, e.g., Dodson v. State, No. 2-08-286-CR, 2010 WL 2889693, at *4–5 (Tex.

App.—Fort Worth July 22, 2010, pet. ref’d) (mem. op., not designated for

publication) (concluding evidence of defendant’s previous convenience-store

robbery admitted in subsequent robbery prosecution more probative than

prejudicial because prior robbery “assisted the jury in understanding Dodson’s

identity as one of the robbers in the D & S Food Mart robbery”); Rogers v. State,

183 S.W.3d 853, 864–65 (Tex. App.—Tyler 2005, no pet.) (concluding murder

victim’s phone message left for her boss the day before her death not unduly

prejudicial); accord United States v. Acosta, 972 F.2d 86, 89 (5th Cir. 1992)

(holding evidence of interstate phone calls between defendant and defendant’s

brother in counterfeiting prosecution not unfairly prejudicial).

      We overrule Appellant’s sole issue and affirm the trial court’s judgment.

See Tex. R. App. P. 43.2(a).


                                          7
                                       /s/ Lee Gabriel

                                       LEE GABRIEL
                                       JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 6, 2015




                               8
