                                                                                                  ACCEPTED
                                                                                             01-14-00527-CR
                                                                                   FIRST COURT OF APPEALS
                                                                                          HOUSTON, TEXAS
                                                                                         3/8/2015 3:11:21 PM
                                                                                        CHRISTOPHER PRINE
                                                                                                      CLERK


                           NO. 01-14-00527-CR

                    IN THE FIRST COURT OF APPEALS                   FILED IN -
                                                           1st COURT OF--APPEALS       ----
                        OF THE STATE OF TEXAS                  HOUSTON,            - -
                                                                                --- TEXAS
                                                                      - - ----ID K ------
                                                           3/8/2015- 3:11:21--PM
                                                                    -
                                                               ---- VO ------
                                                           CHRISTOPHER         --       A. PRINE
                                                                        ----
                                                                  ----Clerk
                    FEANYICHI EZEKWESI UVUKANSI
                              Appellant

                                    v.                            FILED IN
                                                           1st COURT OF APPEALS
                                                               HOUSTON, TEXAS
                          THE STATE OF TEXAS
                                                           3/9/2015 8:49:00 AM
                                Appellee
                                                           CHRISTOPHER A. PRINE
                                                                   Clerk


                  On Appeal in Cause Number 1353181
           From the 174th District Court of Harris County, Texas
                    Hon. Frank Price, Judge Presiding


                         BRIEF FOR APPELLANT



ORAL ARGUMENT REQUESTED                  ALEXANDER BUNIN
                                         Chief Public Defender
                                         Harris County, Texas

                                         BOB WICOFF
                                         State Bar of Texas No. 21422700
                                         bob.wicoff@pdo.hctx.net
                                         Attorney for Appellant

                                         JAYME REISLER
                                         Intern-Public Defender’s Office
                                         1201 Franklin, 13th floor
                                         Houston, Texas 77002
                                         Phone: (713) 368-0016
                                         Fax: (713) 368-9278

                                     i
                            Identity of Parties and Counsel

Appellant                                                Feanyichi Ezekwesi Uvukansi
                                                         TDCJ # 01939267
                                                         Robertson Unit
                                                         12071 FM 3522
                                                         Abilene, Texas 79601

Presiding Judge                                          Hon. Frank Price
                                                         174th District Court
                                                         1201 Franklin
                                                         19th floor
                                                         Houston, Texas 77002

Trial Prosecutor                                         Gretchen Flader
                                                         Kyle Watkins
                                                         Assistant District Attorneys
                                                         Harris County, Texas
                                                         1201 Franklin
                                                         Houston, Texas 77002

Defense Counsel in Trial Court                           Vivian King
                                                         Attorney at Law
                                                         3402 Dowling St., # 206
                                                         Houston, Texas 77004

Defense Counsel on Appeal                                Bob Wicoff
                                                         Assistant Public Defender
                                                         Harris County, Texas
                                                         1201 Franklin, 13th floor
                                                         Houston, Texas 77002

                                                         Jayme Reisler1
                                                         Legal Intern
                                                         Public Defender’s Office
                                                         1201 Franklin, 13th floor
                                                         Houston, Texas 77002

1
  Ms. Reisler is a third-year student at the University of Houston Law Center and has provided
valuable research assistance in the preparation of this brief.


                                              i
                                   Table of Contents

                                                                                Page

Identity of Parties and Counsel:                                                 i

Table of Contents:                                                               ii

Index of Authorities:                                                            v
Statement of the Case:                                                           ix

Issues Presented:                                                                x

Statement of Facts:                                                              1
Summary of the Argument:                                                         8
Issue One:                                                                       10

The evidence is legally insufficient to prove that the Appellant is guilty of
capital murder under Tex. Penal Code § 19.03(a)(7)(A), because there is no
evidence which proves that the Appellant intentionally killed Carlos Dorsey

      Argument:

      A. Standard of review and applicable law                                   10

      B. There was no evidence to prove that the Appellant shot Carlos           12
         Dorsey, that he solicited, encouraged, directed, aided or attempted
         to aid another person to shoot Carlos Dorsey, or that he had the
         specific intent to kill Carlos Dorsey


Issue Two:                                                                       17

The trial court committed reversible error in denying the Appellant’s timely
request for a jury instruction on the lesser included offense of felony
murder.




                                           ii
                              Table of Contents (cont’d.)

                                                                               Page
      Argument:

      A. The trial court erred in refusing to submit an instruction on               17
         felony murder

      B. The trial court’s error resulted in harm                                    21


Issue Three:                                                                         22

The trial court erred in denying the Appellant’s motion to suppress the
warrantless seizure of his cell phone, which resulted in constitutional error that
was not harmless beyond a reasonable doubt

      Argument:

      A. Statement of Facts from Motion to Suppress Hearing                          22

      B. General Standards of Review                                                 26

      C. Issues presented regarding seizure of Appellant’s cell phone                27

          1. Did the officer have a right to enter the apartment of                  28
             Lela Thomas and Camelia James?

               Was entry justified in order to do a “protective sweep?”              28

               Were officers given voluntary consent to enter the apartment?         20

          2. Even if the officer’s entry into the apartment had been                 33
             legal, were the police officers authorized to seize the
             Appellant’s cell phone?

               Were the police authorized to seize the cell phone under the          33
               “plain view” doctrine?


                                            iii
                             Table of Contents (cont’d.)

                                                                              Page

          3. Was seizure of the cell phone justified as being a legal          37
             seizure made incident to Appellant’s arrest?

              The phone was not a weapon                                       37

              There was no proof of an inventory search                        37

              Did the Appellant abandon his cell phone?                        39

          4. “Independent source” and “attenuation of taint”                   40

       D. The erroneous denial of Appellant’s motion to suppress               45
          evidence resulted in constitutional error that resulted in
          harm to the Appellant


Issue Four:                                                                    48
The trial court erred in overruling defense counsel’s objection to the
prosecutor’s closing argument, which interjected new and harmful facts into
the proceedings through unsworn jury argument, namely, that a witness
who had not testified at trial had given the Appellant’s name as someone
involved in the shooting.

       Argument:

       A. Statement of Facts                                                   48

       B. Error and harm analysis                                              51


Prayer for Relief:                                                             55

Certificate of Service                                                         56

Certificate of Compliance:                                                     56


                                           iv
                                         Index of Authorities

Cases                                                                                                   Page

Acosta v. State, 411 S.W.3d 76 (Tex. App.-Houston [1st Dist.] 2013, no pet.) ................. 52

Allridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991) .............................................30-31

Aviles v. State, No. 01-09-01017-CR, 2011 WL 346436 (Tex.App.-Houston. ................ 18
    [1st Dist.] Feb, 3, 2011, pet. ref'd)(mem. op., not designated for publication)

Bedolla v. State, 442 S.W.3d 313 (Tex. Crim. App. 2014).............................................. 19, 21

Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) ...................................................... 17

Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008) ..................................................... 11

Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788 (1968) ........................................... 31

Carmen v. State, 276 S.W.3d 538 (Tex. App.-Houston [1st Dist.] 2008, pet. ref'd) .......... 20

Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034 (1969)..................................................... 37

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2009) ................................................... 11

Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) .................................................... 52

Comer v. State, 754 S.W.2d 656 (Tex. Crim. App. 1986) ..................................................... 39

Cruse v. State, No. 01-13-00077-CR, 2014 WL 3607250 (Tex.App.-Houston. ............... 34
   [1st Dist.] July 22, 2014, pet. ref'd)(mem. op., not designated for publication)

Davila v. State, 441 S.W.3d 751 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd)............ 41

Davis v. State, 74 S.W.3d 90 (Tex. App.-Waco 1999, no pet.) ........................................... 30

Ervin v. State, 331 S.W.3d 49 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) ............... 10

Giles v. State, No. 13-06-00570-CR, 2007 WL 2390823 (Tex.App.-Corpus Christi- ... 32
    Edinburg August 23, 2007, no pet.)(mem. op., not designated for publication)


                                                       v
                                   Index of Authorities (cont'd)

Cases                                                                                                   Page

Henry v. State, 263 S.W.3d 151 (Tex. App.-Houston [1st Dist.] 2007, no pet.)................ 21

Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001) ................................................ 45

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)........................................................ 11

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) ................................................ 10, 11

Johnson v. State, 871 S.W.2d 744 (Tex. Crim. App. 1994) ................................................... 42

Keehn v. State, 279 S.W.3d 330 (Tex. Crim. App. 2009)...................................................... 33

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) ..................................................... 10

McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997) ................................................. 39

McKinney v. State, 207 S.W.3d 366 (Tex. Crim. App. 2006) ............................................... 18

Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093 (1990) ....................................................... 29

Mathis v. State, 67 S.W.3d 918 (Tex. Crim. App. 2002) ...................................................... 17

Maxwell v. State, 73 S.W.3d 278 (Tex. Crim. App. 2002) ................................................... 27

Mazuca v. State, 375 S.W.3d 294 (Tex. Crim. App. 2013) .............................................43-44

Miller v. State, 393 S.W.3d 255 (Tex. Crim. App. 2012) ..................................................... 33

Moberg v. State, 810 S.W.2d 190 (Tex. Crim. App. 1991) ..............................................37-38

Monge v. State, 276 S.W.3d 180 (Tex. App.-Houston [14th Dist.] 2009, no pet.) ............. 43

Moskey v. State, 333 S.W.3d 696 (Tex. App.-Houston [1st Dist.] 2010, no pet.) .............. 38

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) ........................................45, 48, 53

Nelson v. State, 405 S.W.3d 113 (Tex. App.-Houston [1st Dist.] 2013, pet. ref'd).......14-15
                                                       vi
                                     Index of Authorities (cont'd)

Cases                                                                                                         Page

Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417 (1996)............................................................ 30

Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006) ..................................................... 12

Ray v. State, 106 S.W.3d 299 (Tex. App.-Houston [1st Dist.] 2003, no pet.) ................... 22

Reasor v. State, 988 S.W.2d 877 (Tex. App.-San Antonio 1999), ..................................29-30
   rev'd on other grounds, 12 S.W.3d 813 (Tex.Crim.App. 2000)

Robalin v. State, 224 S.W.3d 470 (Tex. App.-Houston [1st Dist.] 2007, no pet.) ........21-22

Roberts v. State, 273 S.W.3d 322 (Tex. Crim. App. 2008) ................................ 12, 16, 18, 19

Roth v. State, 917 S.W.2d 292 (Tex. App.-Austin 1995, no pet.) ..................................31-32

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973) ............................................ 30

Segura v. United States, 468 U.S. 796 (1984).....................................................................40-41

Sims v. State, 84 S.W.3d 805 (Tex. App.-Houston [1st Dist.] 2002, no pet.) .................... 42

State v. Dobbs, 323 S.W.3d 184 (Tex. Crim. App. 2010) ..................................................... 33

State v. Ibarra, 953 S.W.2d 242 (Tex. Crim. App. 1997) ..................................................... 30

State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) ....................................................... 26

Segura v. United States, 468 U.S. 796 (1984).....................................................................40-41

United States v. Palmer, 37 F.3d 1080 (5th Cir. 1994), cert. denied, ................................... 53
  514 U.S. 1087 (1995)
Washington v. State, 417 S.W.3d 713 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd) .. 18

Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013) ....................................... 40, 41


                                                         vii
                                          Index of Authorities (cont'd)

Cases                                                                                                                       Page

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) ................................................. 17

Williams v. State, 235 S.W.3d 242 (Tex. Crim. App. 2007) ...........................................10-11

Statutes and Rules

United States Constitution, Fourth Amendment ............................................................. 30

Tex. Penal Code Ann., sec. 19.03(a)(7)(A) ................................................................... passim

Tex. Penal Code Ann., sec. 22.05........................................................................................ 17

Tex. R. App. P. 44.2(a) .......................................................................................................... 45

Tex. R. App. P. 44.2(b) ......................................................................................................... 55

Other Authority

George E. Dix & John M. Schmolesky, 41 Texas Practice and Procedure .......................... 43
   Sec. 18:29 (3rd ed. 2011)

George E. Dix & John M. Schmolesky, 43 Texas Practice and Procedure ..................... 52-53
   Sec. 45:9 (3rd ed. 2011)




                                                                viii
                             STATEMENT OF THE CASE

      Feanyichi Ezekwese Uvukansi was indicted in cause number 1353181 for

capital murder, alleged to have occurred on or about June 20, 2012 (C.R. at 27); See

Tex. Penal Code, § 19.03(a)(7)(A)(murder of more than one person during the same

criminal transaction). The case was tried in June of 2014 and a jury found Uvukansi

guilty of capital murder (C.R. at 1091). The trial court sentenced him to life without

parole (10 R.R. at 42; C.R. at 1092). A motion for new trial was filed (C.R. at 1108). A

hearing was held pursuant to the motion and the trial court denied the motion on

September 2, 2014 (C.R. at 1118).




                                           ix
                            ISSUES PRESENTED

                                 Issue One

The evidence is legally insufficient to prove that the Appellant is guilty of
capital murder under Tex. Penal Code § 19.03(a)(7)(A), because there is
no evidence which proves that the Appellant intentionally killed Carlos
Dorsey

                                Issue Two

The trial court committed reversible error in denying the Appellant’s
timely request for a jury instruction on the lesser included offense of
felony murder.

                                Issue Three

The trial court erred in denying the Appellant’s motion to suppress the
warrantless seizure of his cell phone, which resulted in constitutional
error that was not harmless beyond a reasonable doubt.

                                 Issue Four

The trial court erred in overruling defense counsel’s objection to the
prosecutor’s closing argument, which interjected new and harmful facts
into the proceedings through unsworn jury argument, namely, that a
witness who had not testified at trial had given the Appellant’s name as
someone involved in the shooting.




                                      x
                                    STATEMENT OF FACTS

A. Witnesses present at the time of the shooting

       After performing at the Blue Room Club on June 20, 2012, Frazier Thompson,

a rap singer who performed under the stage name “Traethatruth,” walked out of the

front entrance of the club. Within seconds, he was shot in the back (7 R.R. at 34-36,

46). He did not see who did the shooting, nor did he see whether anyone else was

shot (7 R.R. at 35).

       Oscar Jeresano worked as a valet that night, parking cars for concertgoers who

were attending the show (8 R.R. at 6). The concert began around 9:00 p.m. Jeresano

testified that it was “a pretty hectic night” due to there being live performances at two

of the clubs in the center.

       The concert ended shortly after 2:00 a.m. (8 R.R. at 14). As patrons exited the

club, a crowd of as many as 100 people gathered near the front door, some of them

waiting to see Traethatruth exit the club, others congregating at the valet stand, trying

to get their cars (8 R.R. at 16).

       As Jeresano was responding to a woman who was trying to retrieve her car, he

heard gunshots (8 R.R. at 18). He turned around to see fire coming from the muzzle

of a gun (8 R.R. at 19-20). He found himself facing the shooter (8 R.R. at 22).

Jeresano explained that he did not run because he “just froze” (8 R.R. at 23). He

described the shooter as having a “determined look” on his face (8 R.R. at 24). The

shooter was moving as he shot, “kind of jumping.” Once Jeresano “unfroze,” he tried
                                           -1-
to hide under a white Challenger that was parked nearby. From his position on the

ground, Jeresano was able to see bodies fall (8 R.R. at 29). He estimated that he heard

approximately 15 shots fired. People in the crowd were screaming and crying (8 R.R.

at 29).

          Jeresano saw only one shooter (8 R.R. at 30, 59). He described what he saw as

the shooter “shooting toward the crowd” (8 R.R. at 101). He denied knowing who

shot whom (8 R.R. at 102). Jeresano did not volunteer any information to police at

the scene because he had a pending federal criminal charge of his own, which led him

to assume that they would not trust his account of events (8 R.R. at 32). He explained

to the jury that he had already pled guilty in the federal case, where he was charged

with possession of ten kilos of cocaine, and was awaiting sentencing, where he faced

ten years to life in prison (8 R.R. at 35).

          After consulting with his attorney, Jeresano gave a recorded statement to the

police, approximately nine days following the shooting (8 R.R. at 35). When he met

with police to give his statement, Jeresano was shown a photo spread, where he

picked the Appellant as the person whom he believed had been the shooter (8 R.R. at

39). Jeresano also identified the Appellant in open court as being the shooter (8 R.R.

at 39). While viewing the photo spreads shown to him by the police, Jeresano also

recognized the photograph of another man he remembered seeing at the club that

night, but whom he did not see do any shooting (8 R.R. at 42).


                                              -2-
      On cross-examination, Jeresano conceded that he only pled guilty in his federal

case on July 12, 2012, after he had witnessed the shooting and after speaking to the

lawyer who represented him in his federal case (8 R.R. at 46). He denied being offered

any benefit in the federal case in exchange for his cooperation, and specifically denied

any awareness that by testifying for the State, he would earn “a 5K.1 reduction under

the federal sentencing guidelines.” (8 R.R. at 48-49). However, despite his claim of

being unaware of any benefit as a result of testifying for the State, Jeresano did admit

that his sentencing (which subjected him to deportation) had repeatedly been reset

pending his testimony in the instant case, and had not yet taken place at the time of

trial in June of 2014 (8 R.R. at 47-48). As for any other benefits that inured to him as a

result of testifying in this case, Jeresano could not recall whether his GPS monitor (a

condition of his pretrial release on the drug possession case) was removed once he

began to cooperate with police as a witness to the shooting (8 R.R. at 50-51).

B. Police responders and investigators

      H.P.D. Officer Walter Reyes was dispatched to the scene of the shooting at

3:10 a.m. (7 R.R. at 50). When he arrived, Reyes encountered “a chaotic scene…a

large crowd running around frantic.” (7 R.R. at 56). Three of the shooting victims

were pronounced dead at 3:16 a.m. (7 R.R. at 60).

      Officer Woodrow Tompkins of the H.P.D. Crime Scene Unit arrived at the

scene of the shooting about 4:00 a.m. that morning (7 R.R. at 90). Due to the large


                                           -3-
crowd and the possibility that evidence might be tampered with or disturbed,

Tompkins called for two more crime scene unit officers to assist him (7 R.R. at 93-

94). As he was testifying about various items of evidence he recovered from the scene,

Tompkins observed that it was not possible to deduce, from where the shell casings

were recovered, where the shooter had been standing when doing the shooting (7

R.R. at 115). This was because the shooter could have been moving while shooting,

people in the crowd could have kicked the shell casings, and cars driving through the

parking lot could have displaced shell casings or even picked up some of the casings

in the tires’ treads (7 R.R. at 115).

       Sergeant John Brooks, a homicide investigator with the Houston Police

Department, testified that during his investigation, Daveon Griffin was developed as a

suspect in the shooting (8 R.R. at 142). On November 8, 2013, Oscar Jeresano

identified Griffin in a photo spread as being someone he remembered being at the

nightclub the night of the shootings, although Jeresano did not identify Griffin as a

shooter (8 R.R. 146, 152). Brooks testified that Oscar Jeresano had told him that there

could have been a second shooter (8 R.R. at 160).

       H.P.D. Sergeant Chris Cegielski, who was assigned to the gang murder squad,

was the lead homicide investigator in the case. He was called to the scene of the

shooting about three hours after it happened because one of the deceased

complainants, Coy Thompson (a/k/a/ “Poppa C”) was a member of the Crips. Two


                                         -4-
Crips members, Josh Warren and Dedrick Johnson, had been linked to the murders in

January of 2012 of two members of the Bloods, Trae Bush and Germane Burnett (8

R.R. at 169). Another Blood, DeShawn Jackson, had also been shot but survived.

Jackson identified Crips members Warren and Johnson as the shooters in that earlier

murder. Coy Thompson was thought to be the Crip who had ordered the shooting of

the two Bloods, which Cegielski believed made Coy an obvious target for a Blood

revenge killing (8 R.R. at 170).

       In the week immediately following the June 20th shootings, Cegielski

interviewed many potential witnesses but got nowhere. Finally, on June 28th, about

eight days after the shootings, Cegielski met with Dedrick Foster, who named a

suspect (8 R.R. at 198). Cegielski also testified concerning the interviews he had with

Oscar Jeresano. He stated that Jeresano identified the Appellant as one of the

shooters (8 R.R. at 206). Jeresano also identified Dexter Brown (whom Cegielski

believed was another shooter), but Jeresano only recalled Brown as having been

present at the club that night, not as someone he saw shooting (8 R.R. at 207). When

he was interviewed, Dexter Brown initially denied being at the club that night, but

later conceded that he had been (8 R.R. at 212, 217). Cegielski spoke to a prosecutor

who offered to accept charges on Brown, but Cegielski was not ready to do so and

Brown was released.




                                         -5-
      Cegielski then testified concerning photographs that were found on the

Appellant’s cellphone. State’s exhibit 56 was a photograph that was taken within an

hour or so after the shooting (8 R.R. at 233). The photograph depicted, among others,

Dexter Brown, Devonte Bennett, and Deveon Griffin (8 R.R. at 233-234). State’s

exhibit 55, another photograph taken about an hour after the shooting, depicted the

Appellant along with those who were shown in State’s exhibit 56 (8 R.R. at 237).

      On July 11, 2012, Cegielski learned that Dedrick Foster had been murdered (8

R.R. at 239). The Appellant was in custody at the time (8 R.R. at 239).

      Officer Cegielski conceded that his theory that the Appellant was the shooter

was not the only theory in the case. For example, Cegielski had also considered the

possibility that a group called the Bellfort Blood had retaliated against Coy (8 R.R. at

252). Another theory had been that some people from New Orleans had committed

the murders (8 R.R. at 252). Additionally, Coy’s mother had told the police that Coy’s

“baby mama” Jasmine might have had something to do with Coy being killed (8 R.R.

at 254). Cegielski admitted that he did not know whether Coy had obtained a gun that

night, after he had texted a man known as Black Willow, asking him to bring a gun to

the club (8 R.R. at 181-182, 254). Cegielski’s investigation led him to conclude that

Coy had a lot of enemies, and that he robbed people for their cocaine. Cegielski

agreed on cross-examination that the Appellant was not responsible for the murder of

Dedrick Foster (8 R.R. at 261).


                                          -6-
C. Expert testimony

      Diana Donley, a criminalist with the Houston Forensic Science Center, testified

as to DNA analysis she conducted on bullet casings recovered from the crime scene

(7 R.R. at 150). She was unable to obtain any full DNA profiles from the shell casings,

and so was unable to match them to any profiles from any of the witnesses,

complainants or the Appellant (7 R.R. at 151-152).

      Kimberly Zeller was a firearms examiner with the Houston Forensic Science

Center (7 R.R. at 157). Zeller examined eighteen cartridge casings that were recovered

by the police at the scene of the shooting. From analyzing these cartridge casings,

Zeller concluded the following:

      1) All eighteen cartridge casings were ejected from .40 caliber firearms (7 R.R.

          at 170, 182);

      2) Ten of the cartridge casings came from one .40 caliber weapon, and the

          remaining eight came from a second firearm (7 R.R. at 169, 182, 184).

      Dr. Roger Milton, Jr., an assistant medical examiner at the Harris County

Institute of Forensic Sciences (9 R.R. at 50), performed autopsies on the three people

who were killed in the incident, with the following findings:

      1) Carlos Dorsey died of gunshot wounds. He was shot from a distance of

          greater than two feet away. (9 R.R. at 53-62; 11 R.R.: State’s exhibits 60-64).




                                          -7-
          No bullet fragments were recovered from Dorsey’s body (11 R.R.: State’s

          Exhibit 60, at page 4);

      2) Erica Dotson also died of gunshot wounds, also from a distance exceeding

          two feet (9 R.R. at 62-74; 11 R.R.: State’s exhibits 66-76). A “large-caliber”

          bullet fragment was recovered from one of Dotson’s wounds (11 R.R.:

          State’s exhibit 66, at pages 4-5; State’s exhibits 74 and 75);

      3) Coy Thompson also died of gunshot wounds (9 R.R. at 75-82; 11 R.R.:

          State’s exhibits 79-88). A large-caliber bullet fragment was recovered from

          Thompson’s thigh (9 R.R. at 81; 11 R.R.: State’s exhibit 79, at page 4; State’s

          exhibit 87).

                               SUMMARY OF THE ARGUMENT

      In Issue One, the Appellant argues that the evidence is legally insufficient to

prove that he is guilty of capital murder under Tex. Penal Code § 19.03(a)(7)(A), the

“multiple-murder” provision of the capital murder statute. Such provision requires

proof that each death relied upon for conviction have been intentional or knowing.

As to complainant Carlos Dorsey, the circumstantial evidence is legally insufficient to

prove an intentional killing of Dorsey, since there is no evidence that the Appellant

himself shot Dorsey, no evidence to prove that the Appellant solicited, encouraged,

directed, aided or attempted to aid another person in shooting Dorsey, there was no

motive to kill Dorsey and no evidence of any specific intent to kill Dorsey. At most,


                                           -8-
the evidence proves an intentional killing of Coy Thompson and the felony murder of

Carlos Dorsey, which is not sufficient to constitute capital murder under Tex. Penal

Code § 19.03(a)(7)(A).

      In Issue Two, the Appellant complains of the trial court’s refusal, upon timely

request, to instruct the jury on the lesser-included offense of felony murder, with

deadly conduct as the underlying felony. Felony murder is a lesser-included offense of

capital murder, and the evidence established felony murder as a valid, rational

alternative to the charged offense under these facts.

      In Issue Three, the Appellant argues that the trial court abused its discretion in

overruling his motion to suppress the warrantless seizure of his cell phone, which

resulted in the admission of evidence from the phone that was not harmless beyond a

reasonable doubt.

      In Issue Four, the Appellant complains of the prosecutor’s closing argument,

which interjected new and extremely prejudicial evidence in front of the jury through

the unsworn comments of the prosecutor. Specifically, despite her repeated

assurances to the court and to defense counsel that she would not introduce such

information in front of the jury, the prosecutor argued at closing, over defense

counsel’s objection, that a witness who had not testified at trial had given the

Appellant’s name as someone involved in the shooting.




                                          -9-
                                      Issue One

     The evidence is legally insufficient to prove that the Appellant is guilty of
     capital murder under Tex. Penal Code § 19.03(a)(7)(A), because there is
     no evidence which proves that the Appellant intentionally killed Carlos
     Dorsey

                                      Argument

A.    Standard of review and applicable law

        A challenge to the legal sufficiency of the evidence is reviewed under the

standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318-20, 99 S. Ct. 2781, 2788-

89 (1979). See Ervin v. State, 331 S.W.3d 49, 52-56 (Tex. App.-Houston [1st Dist.]

2010, pet. ref’d)(citing Brooks v. State, 323 S.W.3d 893, 894-913 (Tex. Crim. App.

2010)). Under the Jackson standard, evidence is insufficient to support a conviction if,

considering all the record evidence in the light most favorable to the verdict, no

rational factfinder could have found that each essential element of the charged offense

was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 317–19, 99 S. Ct. at

2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Evidence is

insufficient under this standard in four circumstances: (1) the record contains no

evidence probative of an element of the offense; (2) the record contains a mere

“modicum” of evidence probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute

the criminal offense charged. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at

2786, 2789 & n.11; Laster, 275 S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750

                                         - 10 -
(Tex. Crim. App. 2007). The sufficiency of the evidence standard gives full play to the

responsibility of the factfinder to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007); see also Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008)

(stating jury is sole judge of credibility of witnesses and weight to give their

testimony). An appellate court presumes that the factfinder resolved any conflicts in

the evidence in favor of the verdict and defers to that resolution, provided that the

resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; see also Clayton, 235

S.W.3d at 778 (reviewing court must “presume that the factfinder resolved the

conflicts in favor of the prosecution and therefore defer to that determination”).

       In viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton,

235 S.W.3d at 778. In determining the sufficiency of the evidence, a reviewing court

examines “whether the necessary inferences are reasonable based upon the combined

and cumulative force of all the evidence when viewed in the light most favorable to

the verdict.” Id. (quoting Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).

Finally, the “cumulative force” of all the circumstantial evidence can be sufficient for

a jury to find the accused guilty beyond a reasonable doubt, even if every fact does not


                                            - 11 -
“point directly and independently to the guilt of the accused.” See Powell v. State, 194

S.W.3d 503, 507 (Tex. Crim. App. 2006).

      Under Tex. Penal Code § 19.03(a)(7)(A):

      (a) A person commits an offense if the person commits murder as defined
          under Section 19.02(b)(1) and:
      (7) The person murders more than one person:
      (A) during the same criminal transaction.

      In order to convict a person of capital murder under the above multiple-

murder theory, “each death must be intentional or knowing-there must be a discrete

‘specific intent to kill’ as to each death.” Roberts v. State, 273 S.W.3d 322, 330 (Tex.

Crim. App. 2008).

B. There was no evidence to prove that the Appellant shot Carlos Dorsey, that
   he solicited, encouraged, directed, aided or attempted to aid another person
   to shoot Carlos Dorsey, or that he had the specific intent to kill Carlos
   Dorsey.

      Considering the evidence in the light most favorable to the verdict, the

following conclusions can be made:

      1. The evidence does not establish that the Appellant shot Carlos
         Dorsey.

      Police found eighteen (18) .40 caliber shell casings at the scene. Ten casings

were fired from one weapon, eight from a second weapon (7 R.R. at 169, 170, 182,

184). DNA testing yielded no results from the casings (7 R.R. at 152). No bullet

fragment was recovered from the body of complainant Carlos Dorsey (11 R.R.: State’s



                                          - 12 -
exhibit 60, at page 4). That is, nothing from the autopsy served to connect the

Appellant to Dorsey’s killing through ballistics evidence.

      The only eyewitness to the shooting, Oscar Jeresano, testified that he saw only

one person shooting. He identified that person as the Appellant (8 R.R. at 30, 39, 59).

He did tell Officer Brooks that there could have been a second shooter (8 R.R. at

160). Jeresano only saw the Appellant with one gun (8 R.R. at 23). In any case,

although no one identified a second shooter, or even saw a second shooter, the State’s

theory of the case was that there was clearly a second shooter (10 R.R. at 36). There

was no testimony that the Appellant actually shot anyone, only that he was shooting

into the crowd (8 R.R. at 101-102; 157-160).

      2. The evidence does not establish that the Appellant solicited,
         encouraged, directed, aided or attempted to aid another person in
         shooting Carlos Dorsey.

      The State posited several possibilities as to who the second shooter might be,

but no one was ever ultimately identified as the second shooter (8 R.R. at 253).

H.P.D. Sergeant John Brooks testified that Daveon Griffin was “a potential secondary

suspect,” but Oscar Jeresano could only recall seeing Griffin at the nightclub the night

of the incident. He did not identify Griffin as a shooter (8 R.R. at 146). Jeresano also

identified Dexter Brown as having been at the club, but again, did not identify him as

a shooter (8 R.R. at 157, 207-208). Officer Cegielski believed that Brown may have

been one of the other shooters, but he did not say why, nor did he link Brown to the


                                          - 13 -
Appellant. Brown was never charged in the shooting (8 R.R. at 216). Devonte Griffin

was developed as another potential suspect, but again, the record is devoid of any

information as to why he was a suspect, or what relationship there may have been

between him and the Appellant (8 R.R. at 242). A woman named April Campbell told

Officer Cegielski that Kedrick Jones was a potential suspect, but again, there was no

testimony or evidence connecting Jones to the Appellant (8 R.R. at 248-250).

      Officer Cegielski conceded that his theory that the Appellant was the shooter

was not the only theory in the case. For example, Cegielski had also considered the

possibility that a group called the Bellfort Blood shot Thompson as retaliation (8 R.R.

at 252). Another theory had been that some people from New Orleans had

committed the murders (8 R.R. at 252). Additionally, Thompson’s mother told the

police that Coy’s “baby mama” Jasmine might have had something to do with Coy

being killed (8 R.R. at 254). Cegielski admitted that he did not know whether Coy had

obtained a gun the night he was killed, after he had texted a man known as Black

Willow, asking him to bring a gun to the club (8 R.R. at 181-182, 254). Cegielski’s

investigation led him to conclude that Coy had a lot of enemies, and that he robbed

people for their cocaine.

      3. The evidence does not establish that the Appellant had the specific
         intent to kill Carlos Dorsey.

      Although motive is not an element of the offense of murder, it is relevant as a

circumstance tending to prove guilt. Nelson v. State, 405 S.W.3d 113, 124 (Tex. App.-

                                         - 14 -
Houston [1st Dist.] 2013, pet. ref’d). Thus, in terms of whether the circumstantial

evidence in this case is sufficient to prove that the Appellant intentionally killed Coy

Thompson, Jeresano’s testimony that the Appellant was the shooter, along with his

testimony that the shooter had “a determined look” as he shot, along with a motive to

kill Coy Thompson (as revenge for his suspected involvement in the earlier killing of

the Appellant’s fellow gang member) all likely suffice to constitute circumstantial

evidence that was legally sufficient to prove that the Appellant intentionally killed Coy

Thompson.

      However, absolutely no motive was established to kill Carlos Dorsey, who was

apparently a bystander. If the existence of a motive is relevant as a circumstance

tending to prove the Appellant’s guilt of intentionally killing Coy Thompson, then the

lack of motive should be relevant determining whether there was a specific intent to

kill Carlos Dorsey.

      Oscar Jersano testified that the shooter “was moving…he was kind of jumping.

See, he was trying to get to his car and he was kind of jumping” (7 R.R. at 26). As

stated supra, there was no evidence that the Appellant shot Dorsey or that he

encouraged another to do so (as opposed to the other shooter doing so independent

of any involvement with the Appellant). However, even assuming, arguendo, that there

is legally sufficient circumstantial evidence to support the theory that the Appellant

shot Carlos Dorsey, or that another person acting as a party with the Appellant shot


                                          - 15 -
Dorsey, there is still nothing to support an intentional killing of Dorsey under either

theory.

       Even assuming the Appellant shot Coy Thompson, or was a party to shooting

Thompson, the evidence only proves that Dorsey was shot due to indiscriminate

shooting into the crowd, not with any intention that Dorsey die. Even in a light most

favorable to the jury’s verdict, the killing of Dorsey was felony murder.

       In order to prove that the Appellant was guilty of capital murder under Tex.

Penal Code § 19.03(a)(7)(A), “each death must be intentional or knowing-there must

be a discrete ‘specific intent to kill’ as to each death.” Roberts v. State, 273 S.W.3d 322,

330 (Tex. Crim. App. 2008). Because the circumstantial evidence did not prove that

the Appellant had the specific intent to kill Carlos Dorsey, the evidence fails to prove

that both murders alleged in the indictment were intentional. Thus, this Court should

vacate the judgment of capital murder, reform the judgment to reflect a conviction for

murder, and remand the case to the trial court for a new punishment hearing.




                                           - 16 -
                                        Issue Two

       The trial court committed reversible error in denying the
       Appellant’s timely request for a jury instruction on the lesser
       included offense of felony murder.

                                        Argument

A. The trial court erred in refusing to submit an instruction on felony murder.

       Defense counsel requested in writing a jury charge on the lesser-included

offense of felony murder with deadly conduct as the underlying felony. See Tex. Penal

Code Ann. § 22.05 (C.R. at 1074). The trial court denied the request (C.R. at 1076).

       The Court of Criminal Appeals has implemented a two-prong test to determine

whether a charge on a lesser-included offense should be given. Mathis v. State, 67

S.W.3d 918, 925 (Tex. Crim. App. 2002). The first step is to determine whether the

offense is a lesser-included offense of the offense charged. Id. The second prong of

the test then requires an evaluation to determine whether some evidence exists that

would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of

the lesser offense. Id. In other words, the evidence must establish the lesser-included

offense as a valid, rational alternative to the charged offense. Wesbrook v. State, 29

S.W.3d 103, 113 (Tex. Crim. App. 2000). Anything more than a scintilla of evidence is

sufficient to entitle a defendant to a lesser charge. Bignall v. State, 887 S.W.2d 21, 23

(Tex. Crim. App. 1994).




                                            - 17 -
      The Appellant was charged with capital murder under the multiple-murder

theory provision codified in Tex. Penal Code Ann. § 19.03(a)(7)(A). In order to

convict a person of capital murder under such section, “each death must be

intentional or knowing-there must be a discrete ‘specific intent to kill’ as to each

death.” Roberts v. State, 273 S.W.3d 322, 330 (Tex. Crim. App. 2008). Felony murder is

a lesser-included offense of capital murder. McKinney v. State, 207 S.W.3d 366 (Tex.

Crim. App. 2006).

      The question thus becomes whether some evidence exists that would permit a

jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser

offense of murder because either of the two deaths alleged in the indictment were not

caused with the specific intent to kill, but were instead committed “in the course of

and in furtherance of the commission of” felony deadly conduct, specifically,

intentionally or knowingly discharging a firearm at or in the direction of one or more

individuals. Deadly conduct may form the basis of felony murder. See Washington v.

State, 417 S.W.3d 713, 721 (Tex. App.-Houston [14th Dist.] 2013, pet. ref’d); See also

Aviles v. State, No. 01-09-01017-CR, 2011 WL 346436, at *5 (Tex. App.-Houston [1st

Dist.] Feb. 3, 2011, pet. ref’d)(mem. op., not designated for publication).

      It is critical to note in this regard that even if only one of the two deaths had

been attributable to felony murder, rather than an intentional murder, then a capital

murder conviction would not have been appropriate. As stated supra, under the


                                          - 18 -
multiple-murder provision of Tex. Penal Code Ann. § 19.03(a)(7)(A), “each death

must be intentional or knowing-there must be a discrete ‘specific intent to kill’ as to

each death.” Roberts v. State, 273 S.W.3d 322, 330 (Tex. Crim. App. 2008). Thus, if the

jury had concluded, for example, that whereas the Appellant, acting alone or as a

party, intended to kill Coy Thompson (whom the Appellant arguably had some

motive to kill), but the jury further believed that Carlos Dorsey was killed by

indiscriminate shooting into the crowd (whether by the Appellant, a co-conspirator or

someone else altogether), with no intent to kill him, then the Appellant would not

have been guilty of capital murder but murder.

      Although the requested instruction asks for the lesser-included offense of

felony murder as applied to both complainants (C.R. at 1074), this request was

certainly adequate to alert the trial court that the evidence had raised the issue of

whether one or both complainants had been killed in the course of felony deadly

conduct (i.e., a felony murder) and so an appropriate charge applying felony murder

was being requested. To avoid forfeiture of a complaint on appeal, all a party has to

do is let the trial judge know what he wants and why he thinks he is entitled to it and

do so clearly enough for the judge to understand the request at a time when the trial

court is in a proper position to do something about it. Bedolla v. State, 442 S.W.3d 313,

316 (Tex. Crim. App. 2014)(where defense counsel requested jury instruction on “self-

defense,” such was sufficient to avoid forfeiture of complaint on appeal that trial


                                          - 19 -
court had erred in refusing instruction, despite State’s claim that requested charge was

not specific enough to alert trial court to which type of self-defense charge was being

requested); Carmen v. State, 276 S.W.3d 538, 541 (Tex. App.-Houston [1st Dist.] 2008,

pet. ref’d)(“‘Magic words’ are not required; a complaint will be preserved if the

substance of the complaint is conveyed to the trial judge.”)(quoting Bennett v. State, 235

S.W.3d 241, 243 (Tex.Crim.App.2007)).

      Thus, by requesting a charge on felony murder with deadly conduct as the

underlying felony, counsel adequately preserved the complaint raised now, which is

that the evidence certainly raised felony murder, rather than intentional murder, as a

rational alternative to the death of Carlos Dorsey, and a jury instruction allowing the

jury to find the Appellant guilty of the lesser offense of murder, due to evidence

having been raised that there was no “discreet intent to kill” Dorsey, was appropriate.

      Jurors were presented evidence of a “a chaotic scene…a large crowd running

around frantic” (7 R.R. at 56), following 18 shots being fired in rapid succession into a

crowd, the only eyewitness admitting that he did not even see the second shooter.

Among other scenarios, a juror would be perfectly rational under the facts of this case

in concluding that the Appellant (or his co-conspirator) specifically intended to kill

Coy Thompson and did so, and then, as he ran away, fired indiscriminately into the

crowd, not intending to kill anyone but killing Dorsey and Dotson. Indeed, Oscar

Jersano testified that the shooter “was moving…he was kind of jumping. See, he was


                                          - 20 -
trying to get to his car and he was kind of jumping” (7 R.R. at 26). The killing of

Dorsey, whom the Appellant had no motive to kill, would be a felony murder in such

instance. Another rational conclusion would be that while the Appellant fled, his co-

conspirator fired indiscriminately into the crowd to cause a distraction and to provide

cover, but without any specific intent to kill Dorsey.

B. The trial court’s error resulted in harm

       If the trial court errs in regard to the jury charge in a criminal case, and the

appellant timely objects to that error at trial, as in the instant case, harm is assessed by

conducting an Almanza harm analysis. See Henry v. State, 263 S.W.3d 151, 156 (Tex.

App.-Houston [1st Dist.] 2007, no pet)(“‘Some’ harm in an Almanza analysis means

‘any’ harm; thus, if the charging error causes any actual harm to the appellant, as

opposed to ‘theoretical harm,’ then the error requires a reversal of the judgment of

the trial court.”). In this case, appellant properly objected to the charge and requested

an instruction on the lesser-included offense of felony murder. As stated supra, the

requested charge was certainly sufficient to alert the trial court to what was being

requested. Bedolla v. State, 442 S.W.2d 313, 316 (Tex. Crim. App. 2014).

       If the charge error involves the absence of a lesser-included offense

[instruction] that leaves the jury with the sole option to convict the appellant of the

charged offense or to acquit him, some harm exists. Henry, 263 S.W.3d at 156 (citing

Saunders v. State, 913 S.W.2d 564, 572 (Tex. Crim. App. 1995)). Robalin v. State, 224


                                           - 21 -
S.W.3d 470, 477 (Tex. App.-Houston [1st Dist.] 2007, no pet.)(stating same); Ray v.

State, 106 S.W.3d 299, 302-303 (Tex. App.-Houston [1st Dist.] 2003, no pet)(same).

      Because the trial court’s error in refusing the requested charge left the jury with

the sole option of convicting the appellant of capital murder or acquitting him, the

error harmed the Appellant and he is entitled to a new trial.

                                      Issue Three

      The trial court erred in denying the Appellant’s motion to suppress
      the warrantless seizure of his cell phone, which resulted in
      constitutional error that was not harmless beyond a reasonable
      doubt

                                       Argument

      The Appellant filed a pre-trial motion to suppress evidence seized from his cell

phone, complaining that the initial seizure of his phone in a third person’s residence

was done without a warrant and was not incident to his arrest (C.R. at 853). The trial

court held a hearing pursuant to the motion. 2

A.   Statement of Facts from Motion to Suppress Hearing

      On the afternoon of July 3, 2012, armed with a warrant to arrest the Appellant,

eight police officers surrounded an apartment on Yale Street in Houston (6 R.R. at

21). The officers did not have a search warrant. H.P.D. Sergeant Clint Ponder



2
   At the hearing, both H.P.D. Officer Ponder and the prosecutor clarified that although
police officers had initially obtained a warrant or order to “ping” the Appellant’s phone,
meaning they obtained permission to locate his phone (and therefore the Appellant himself)
through GPS tracking, there was no search warrant to seize the phone (6 R.R. at 13, 15)
                                          - 22 -
explained that “We had an arrest warrant. We weren’t looking for evidence, therefore,

there was no need for a search warrant on our part” (6 R.R. at 20).

      Ponder, accompanied by several other officers, knocked on the door (6 R.R. at

23). A woman who was later identified as Camelia James opened the door (6 R.R. at

24, 41). As Ponder was showing James a photo of the Appellant, the Appellant called

from upstairs, “Hey, I’m coming down.” (6 R.R. at 25). Without incident, he came

downstairs, where he was frisked, handcuffed and put in a police car (6 R.R. at 28).

      Sergeant Ponder, who was the only officer on the scene of the Appellant’s

arrest to testify at the hearing, claimed ignorance as to how police came into

possession of the Appellant’s cell phone (6 R.R. at 32). He denied that the police were

searching for a cell phone (6 R.R. at 38).

      Lela Thomas and her two children were also at the residence that day (6 R.R. at

64). Thomas testified that she was upstairs in the tub when the police came (6 R.R. at

62). When she heard them knocking, she got out of the tub, looked downstairs to see

what was happening, and told the Appellant, who was upstairs with her at the time,

that the police were there (6 R.R. at 63).

      After the Appellant had gone downstairs and been taken into custody by the

police, Thomas was standing outside with her children when the police approached

and asked her “where’s his stuff at?” (6 R.R. at 64). She led them upstairs and pointed

out the Appellant’s belongings (6 R.R. at 65). According to Thomas, the officer then


                                             - 23 -
specifically asked her where the Appellant’s phone was (6 R.R. at 65). When Ms.

Thomas stated that she did not know where his phone was, the officer looked around

and discovered a phone next to the bed on the floor (6 R.R. 65-66). The officer

picked up the phone and asked if it was the Appellant’s, to which Ms. Thomas

responded that it was (6 R.R. at 66). The officer took the phone.

      The State did not provide any witnesses to refute Ms. Thomas’s version of

events. Notably, the State did not provide any testimony from the officer (whose

identity was not even revealed at the hearing) who actually seized the phone as to

whether he seized the phone because he had probable cause to believe that it

contained incriminating information. In any case, the trial court apparently believed

Lela Thomas, stating (prior to making its ruling):

      “The testimony from (Thomas). She came off as a credible witness to
      me. I cannot see why she might be lying about something. She didn’t
      come across that way to me. She said the officers said, where’s his
      phone, and she pointed it out and said, there it is. Which I don’t have a
      problem with, other than the fact, do you guys have a right to take his
      phone at that point? Especially if it’s a non-issue, according to you. Why
      would they have a right to pick up the phone?” (6 R.R. at 109).

      The Appellant testified at the suppression hearing. He claimed that once in the

squad car, he did ask the officers to bring him a shirt and shoes to wear, which were

contained in a clothing bag in an upstairs room of the apartment. (6 R.R. at 76-77).

However, he specifically denied asking for his cell phone, which was not inside the

clothing bag (6 R.R. at 76-77, 78). He also asked one of the officers, Sergeant Garza,


                                          - 24 -
to call his father and inform him of the arrest, which the officer did on his own cell

phone. (6 R.R. at 77-78). Sergeant Garza and the Appellant then left the scene for the

station. (6 R.R. at 78).

       The Appellant claimed that the first time he saw his phone after being arrested

was later, when he was inside the interview room at the homicide division (6 R.R. at

78). He stated that he had not intended that his phone be taken (6 R.R. 77-78).

       As was the case with Lela Thomas’s version of what happened upstairs with

the seizure of the cell phone, the State did not provide Sergeant Garza or any other

officers to provide a different version of events. The Appellant’s account was

unrefuted.

       In denying the motion to suppress, the trial court found that the Appellant had

not asked the officer to retrieve his phone:

               “Mr. Uvukansi was at a location other than where he resided. He
       asked the officer, as best I can tell, recovered at least his clothes and
       shoes. There was no mention of any phone. So I won’t use that as any
       indication that he told the officer to recover his phone, but when they
       went to get his property and his cell phone was pointed out by one of
       the occupants of the home. At that particular point in time I think they
       were authorized to pick up the phone so that nobody can take the phone
       and do something with it, but before they could capture anything off the
       phone then they would be required to get a warrant, which apparently
       they did. So far as recovery of the phone, motion to suppress will be
       overruled in that regard.
               That’s it. Just give me one more thing to argue about. I do think
       they had a right to pick up the phone under the circumstances and not
       leave it there for fear that somebody could take the phone and obliterate
       what might be on the phone but they had no right to go into the phone
       until they got a warrant and they did.” (7 R.R. at 6-7).

                                          - 25 -
As far as the officers having any “fear that somebody could take the phone and

obliterate what might be on the phone,” the possibility that the phone might contain

evidence which could be destroyed was never mentioned by any witness at the

hearing, and certainly was not posited by anyone at the hearing as a reason for seizing

the phone. No one testified that they thought that the cell phone might contain

incriminating evidence.

B. General Standards of Review

      An appellate court reviews a trial court’s denial of a motion to suppress under a

bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim.

App. 2010). The trial court’s factual findings are reviewed for an abuse of discretion,

and the trial court’s application of law to the facts is reviewed de novo. Id. When the

trial court does not issue findings of fact, findings that support the trial court’s ruling

are implied if the evidence, viewed in a light most favorable to the ruling, supports

those findings. See State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006).

Almost total deference is given to the trial court’s implied findings, especially those

based on an evaluation of witness credibility and demeanor. Valtierra, 310 S.W.3d at

447. An appellate court should sustain the trial court’s ruling if it is reasonably

supported by the record and is correct on any theory of law applicable to the case. Id.

      In cases involving a warrantless seizure of evidence, the federal constitution

requires the State to meet its burden to prove an exception to the search warrant

                                           - 26 -
requirement by a preponderance of the evidence, while the Texas Constitution

requires the State to present clear and convincing evidence. See Maxwell v. State, 73

S.W.3d 278, 281 (Tex. Crim. App. 2002)(consent exception).

C. Issues presented regarding seizure of Appellant’s cell phone

      The following issues are raised surrounding the taking of the cell phone:

      1) Did the unnamed officer have legal authority to enter the apartment of Lela

Thomas after the Appellant had been arrested and placed in the police squad car?

Specifically, was the entry justified by the need to do a protective sweep of the

premises or pursuant to voluntary consent from Lela Thomas?

      2) Even assuming, arguendo, that the officer’s entry into the apartment was legal,

were the police authorized to seize the Appellant’s cell phone? Specifically, was

seizure of the cell phone justified under the plain view doctrine, i.e., that it was

immediately apparent that the cell phone might contain incriminating evidence?

Alternatively, were the police authorized to seize the cell phone as being incident to

the Appellant’s arrest, as part of some caretaking or inventory authority, or because

the phone had been abandoned by the Appellant?

      3) Even assuming that the seizure of the phone was illegal, did the fact that the

officers subsequently obtained a warrant to view the phone’s contents cure the initial

illegal seizure? That is, does the independent source doctrine act to allow the contents

of the Appellant’s cell phone into evidence on the basis that there was no causal


                                         - 27 -
connection between the initial warrantless seizure of the phone and the procurement

of the phone’s contents? Finally, does the attenuation doctrine allow evidence of the

cell phone’s contents into evidence?

       1. Did the officer have a right to enter the apartment of Lela Thomas and

Camelia James?

       The first question is whether the officers even had the right to enter the

apartment. According to Sergeant Ponder, who was the only officer involved in the

arrest to testify at the suppression hearing, he knocked on the apartment door and a

woman who was later identified as Camelia James opened it (6 R.R. at 24, 41). 3 As

Ponder was showing James a photo of the Appellant, the Appellant called from

upstairs, “Hey, I’m coming down.” (6 R.R. at 25). Ponder was at the doorway or just

inside the apartment at this point (6 R.R. at 26). Without incident, the Appellant came

downstairs, where he was frisked, handcuffed and put in a police car (6 R.R. at 28).

Ponder did not conduct a search of the apartment or order anyone else to (6 R.R. at

29). He did not know which police officer went upstairs.

       Was entry justified in order to do a “protective sweep?” Ponder noted that

it was “standard procedure” when executing an arrest warrant to “clear the house to

make sure when we’re out in the car filling out the paperwork nobody comes out and

shoots us or anything” (6 R.R. at 29). Ponder testified that as a general proposition,

they sometimes entered a residence after an arrest warrant had been executed (6 R.R.

2 Camelia James and Lela Thomas were roommates (6 R.R. at 41).
                                            - 28 -
at 33), but he testified that he did not know whether officers did such a sweep in this

instance or if the people inside the house voluntarily exited the apartment (6 R.R. at

29-30). Thus, although he posited this rationale for entering the apartment as a

possibility, it remains in the realm of speculation: Ponder had no idea whether that

was the reason for entering the apartment or even if any officers did so.

      One exception to the necessity of a search warrant is such a “protective sweep”

performed by police officers. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093,

1094–95 (1990). A “protective sweep” is a “quick and limited search of the premises,

incident to an arrest and conducted to protect the safety of the police officers or

others.” Id. “It is narrowly confined to a cursory visual inspection of those places in

which a person might be hiding.” Id. Incident to arrest, police officers may lawfully,

“as a precautionary matter and without probable cause or suspicion, look in closets

and other spaces immediately adjoining the place of arrest from which an attack could

be immediately launched.” Id. at 334, 110 S.Ct. at 1098.

      A protective sweep of the premises cannot justify entry into the apartment in

this case, given the fact that the Appellant was immediately arrested downstairs and

placed in the squad car, and no evidence was adduced at the hearing that an officer on

the scene had an objective, reasonable, and articulable suspicion that there were

persons inside the apartment who posed a danger to them. See Reasor v. State, 988

S.W.2d 877, 882 (Tex. App.-San Antonio 1999), rev’d on other grounds, 12 S.W.3d


                                         - 29 -
813 (Tex. Crim. App. 2000)(officer failed to articulate any facts justifying sweep).

According to Sergeant Ponder, eight armed officers were on the scene (6 R.R. at 22).

As far as persons at the apartment posing a danger to the officers, Ponder admitted

that the woman who answered the door was not even frisked for weapons (6 R.R. at

30). See also, Davis v. State, 74 S.W.3d 90 (Tex. App.-Waco 2002, no pet.)(where

defendant emerged from the kitchen saying, “just take my f_ing ass to jail,” no

protective sweep was justified, where officers voiced no objective, reasonable, and

articulable suspicion that there were persons inside the residence who posed a danger

to them, and an armed officer was watching the other persons present).

      Were officers given voluntary consent to enter the apartment? Consent to

search is another well-established exception to the constitutional requirements of both

a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct.

2041, 2043–44, 36 L.Ed.2d 854 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim.

App. 1997). “The Fourth Amendment test for a valid consent to search is that the

consent be voluntary, and ‘[v]oluntariness is a question of fact to be determined from

all the circumstances.’” Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 421, 136

L.Ed.2d 347 (1996) (quoting Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059). In order

to be valid, the consent must “not be coerced, by explicit or implicit means, by

implied threat or covert force.” Schneckloth, 412 U.S. at 228, 93 S.Ct. at 2048; see also

Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991)(“The consent must be


                                          - 30 -
shown to be positive and unequivocal, and there must not be any duress or coercion”)

(citation omitted). By the same token, consent is not established by “showing no more

than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S.

543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968)(where officer falsely represented

he had a valid search warrant, consent not voluntary).

      Sergeant Ponder did not recall whether anyone asked permission to search the

apartment (6 R.R. at 34). The officer who seized the cell phone was never identified

and did not testify, so nothing was established at the hearing as to whether he

obtained consent to enter the apartment from Lela Thomas. However, Thomas did

testify. Regarding the officer’s entry into the apartment after the Appellant had already

been placed in the squad car, Thomas testified that she was standing outside with her

children when the police approached her, asking “where’s his stuff at?” (6 R.R. at 64).

She led them upstairs, pointed out the Appellant’s clothes, and then, upon specifically

being asked if a phone lying nearby belonged to the Appellant, replied that it did (6

R.R. at 64-66).

      This does not constitute a voluntary consent to search the apartment. It is

instead mere acquiescence to a claim of lawful authority. In Roth v. State, 917 S.W.2d

292 (Tex. App.-Austin 1995, no pet.), police officers knocked on the front door of an

apartment. Roth answered and opened the door just enough to look outside. One of

the officers asked Roth if another person, a juvenile runaway, was inside. Roth replied


                                          - 31 -
“he’s upstairs” and stepped away from the door. The police followed him upstairs,

where he led them to their suspect. Roth then admitted that drugs lying in plain view

inside the apartment belonged to him. Both the police officer and Roth agreed at the

suppression hearing that there was no request to enter the apartment or to search, nor

was there an invitation to enter. Id., at 300. Likewise, in the instant case, the only

account of how the officers entered the apartment came from Lela Thomas, who

testified that she led the police upstairs after they approached her, asking “where’s his

stuff at?” (6 R.R. at 64). Holding that the consent to enter the apartment had not been

shown to have been freely and voluntarily given under the circumstances in Roth, the

Austin Court of Appeals reversed the trial court’s denial of Roth’s motion to

suppress. Id. at 300. Likewise, the State failed to prove that Lela Thomas’s consent, if

any can be said to have been given, was voluntary in this case, rather than being a

mere acquiescence to the officer’s apparent authority to go upstairs.

       This case is also very similar to Giles v. State, No. 13-06-00570-CR, 2007 WL

2390823 (Tex. App.-Corpus Christi-Edinburg August 23, 2007, no pet.)(mem. op.,

not designated for publication).4 In Giles, a witness called police to report a suspected

drunken driver. The driver had apparently driven home and gone inside her house.

Police arrived to find the suspect’s boyfriend outside the house. They told the


4
 Although Giles is an unpublished opinion and so does not have precedential value, the reasoning of
the Corpus Christi Court of Appeals is instructive in this case, as the facts are very similar to those
presented here.

                                                - 32 -
boyfriend that they were conducting a criminal investigation and that they wanted to

speak to his girlfriend. The boyfriend walked inside with the two police officers

following him. The officers did not ask for permission to enter the home. The Corpus

Christi Court of Appeals held that “under these facts, we conclude that the trial court

erred in finding that consent had been given to enter the residence,” reasoning that

the boyfriend’s action constituted “mere acquiescence to the officers’ entry into the

residence.” Id., at * 5.

       2) Even if the officer’s entry into the apartment had been legal, were the

police authorized to seize the Appellant’s cell phone?

       Were the police authorized to seize the cell phone under the “plain view”

doctrine? The “plain view” doctrine is an exception to the warrant requirement. See

Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). It allows an officer to seize

an item during a warrantless search if: (1) the officer sees an item in plain view at a

vantage point where he has the right to be; and (2) it is immediately apparent that the

item seized constitutes evidence, that is, that there is probable cause to associate the

item with criminal activity. Miller v. State, 393 S.W.3d 255, 266 (Tex. Crim. App. 2012);

State v. Dobbs, 323 S.W.3d 184, 185 (Tex. Crim. App. 2010)(“so long as probable cause

to believe that items found in plain view constitute contraband arises while police are

still lawfully on the premises…the seizure of those items is permissible under the

Fourth Amendment.”).


                                          - 33 -
       In a recent case which also involved a warrantless seizure of a cell phone that

relied on the plain view exception, this Court explained the distinction between the

rules governing an illegal search and those surrounding an illegal seizure. Cruse v. State,

No. 01-13-00077-CR, 2014 WL 3607250 (Tex. App.-Houston [1st Dist.] July 22, 2014,

pet. ref’d)(mem. op., not designated for publication).5 In Cruse, the victim of a gang

rape told police that several of her assailants had videotaped the assaults on their cell

phones. Cruse was one of the suspects. As a result, a police officer seized Cruse’s cell

phone. Police subsequently obtained a search warrant to view the phone’s contents,

which revealed a video of Cruse sexually assaulting the victim. Cruse filed a motion to

suppress the video from the cell phone, complaining that it had been seized without a

warrant.

       In upholding the warrantless seizure of the cell phone, this Court first pointed

out the distinction between illegal searches and illegal seizures:

       The prohibition on unreasonable seizures is distinct from the
       prohibition on unreasonable searches. See United States v. Jacobsen, 466
       U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).“A ‘seizure’ of
       property occurs when there is some meaningful interference with an
       individual’s possessory interests in that property.” Id. “A ‘search’ occurs
       when an expectation of privacy that society is prepared to consider
       reasonable is infringed. Cruse, at *2.




5
  Although Cruse is an unpublished opinion and so is not binding precedent, this Court’s reasoning
in Cruse is appropriate in this case, as the facts are very similar to those presented here.


                                              - 34 -
The Court then invoked the plain view seizure doctrine as the rationale for seizing the

phone in Cruse, since in light of what the officer knew at the time, there was probable

cause to believe the phone contained incriminating evidence:

      [I]f police are lawfully in a position from which they view an object, if its
      incriminating character is immediately apparent, and if the officers have
      a lawful right of access to the object, they may seize it without a
      warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2136-
      37, 124 L.Ed.2d 334 (1993). An object’s incriminating character is
      considered immediately apparent if an officer has probable cause to
      believe it contains contraband. See Arizona v. Hicks, 480 U.S. 321, 326-27,
      107 S.Ct. 1149, 1153–54, 94 L.Ed.2d 347 (1987); Jacobsen, 466 U.S. at
      121–22, 104 S.Ct. at 1661; State v. Dobbs, 323 S.W.3d 184, 189 (Tex.
      Crim. App. 2010). Cruse, at *2, 3.

      The “plain view” doctrine does not apply to this case because no one testified

in this case that when it was seized, there was probable cause to believe that

Appellant’s cell phone contained incriminating evidence. This is the critical distinction

between the instant case and the facts in Cruse, where that cell phone was thought to

contain a videotape of the suspect’s criminal act. In the instant case, Sergeant Ponder

testified that the police weren’t looking for evidence, but simply went to the location

to arrest the Appellant (6 R.R. at 20). During questioning by defense counsel, Ponder

denied that it would have been apparent that the cell phone contained incriminating

evidence:

           Defense counsel: You testified you were not there to look for a
      phone?
           Ponder: Correct.



                                          - 35 -
              Q.: Is it fair to say if you saw a phone lying there you wouldn’t
      induce immediately that there was anything incriminating about a phone,
      would you?
              A.: Correct.
              Q.: You wouldn’t see a phone lying there and immediately have a
      belief that it was (inaudible) crime?
              A.: Correct.
              Q.: And then no one had instructed you to get the phone, if you
      saw one?
              A.: Correct.
              Q.: So you, personally, at the time you arrested him, had you been
      told by Officer Cegielski that there would be incriminating evidence on
      the phone?
              A.: No, he never told me that.
              Q.: To your knowledge, was anybody else in your unit informed
      of that?
              A.: No.
              Q.: As far as you were concerned, his phone was of no
      importance whatsoever to this case?
              A.: Correct. Not that I was aware of. (6 R.R. at 39-40).

      The lead investigator in the case, Sergeant Cegielski, was not present when the

cell phone was seized, but as the following exchange from the suppression hearing

makes clear, he also did not believe that the Appellant’s cell phone contained

incriminating evidence:

              Defense counsel: All right. So the State questioned you, you
      never discussed with the arrest team the importance or unimportance of
      the phone, right?
              Cegielski: No, sir.
              Q.: All right. On July 3rd, you had no reason to believe that there
      would be any incriminating evidence on his phone, did you?
              A.: I didn’t consider the cell phone in any way at that time (6 R.R.
      at 89).




                                         - 36 -
       Because there was no testimony at the suppression hearing that it was

immediately apparent to the officer that the cell phone contained incriminating

evidence, the “plain view” doctrine cannot be relied upon by the State to justify the

seizure.

       3) Was seizure of the cell phone justified as being a legal seizure made

incident to the Appellant’s arrest?

       A search incident to arrest is limited to the arrestee’s person and the area within

his immediate control, which is to say “the area into which an arrestee might reach in

order to grab a weapon or evidentiary items.” Chimel v. California, 395 U.S. 752, 763, 89

S.Ct. 2034, 2040 (1969). As explained supra, no theory was posited at the suppression

hearing, nor can one be conjured, where it could be seriously argued that the

Appellant’s cell phone, lying on the floor in an upstairs bedroom, could pose a danger

to officers after the Appellant was in custody in a police car outside.

       With respect to what police may do incident to an arrest, in terms of

inventorying and safeguarding an arrestee’s belongings that are inside private

premises, rather than in an automobile, the Court of Criminal Appeals addressed this

issue in Moberg v. State, 810 S.W.2d 190 (Tex. Crim. App. 1991). Moberg was arrested

at a motel room pursuant to a valid arrest warrant involving the aggravated sexual

assault of his teenage daughter. After Moberg had already been taken to the police

station, police returned to the motel room, were allowed entry by the manager, and


                                          - 37 -
removed Moberg’s suitcase, an ice chest, a laundry basket, and clothing. In the laundry

basket, the police found incriminating photographs of Moberg having sex with

underage girls. Id., at 192.

       The Court of Criminal Appeals pointed out that “the doctrine of inventory

search is usually applicable when authorities have legitimately come into possession of

belongings or containers of the arrestee and they must inventory the contents of the

property initially taken into custody.” Id., at 194. In determining that Moberg enjoyed

a reasonable expectation of privacy in his motel room, the Court noted, in words that

apply equally to the instant case: “Appellant had brought his personal belongings into

the room and treated the room as if it was a place where he intended to repose for the

evening. In fact when the police entered the room pursuant to the arrest warrant,

appellant was on the bed in his underwear. Certainly appellant was treating the room

as a place where a traveler could obtain privacy away from all interlopers.” Id., at 192.

The Court reversed Moberg’s conviction due to the unlawful seizure of his

belongings.

       The State bears the burden of establishing that the police conducted a lawful

inventory search. Moskey v. State, 333 S.W.3d 696, 700 (Tex. App.-Houston [1st Dist.]

2010, no pet.). The State satisfies this burden by demonstrating that (1) an inventory

policy exists and (2) the officers followed the policy. Id.




                                           - 38 -
      As with various other matters issues that were relevant to the Appellant’s

motion to suppress (consent, plain view, independent source, attenuation), the State

provided no evidence that its seizure of the Appellant’s cell phone was done pursuant

to any inventory policy, or even that the phone was seized because it was with the

Appellant’s clothing. Lela Thomas refuted that possibility and the trial court believed

her. The State chose to provide no evidence of any inventory policy at the hearing,

nor did they give any explanation for why the police felt authorized to seize the

phone, just as the State inexplicably did not present the police officer who seized the

phone (or even his name), or the affidavit, contents or time of issuance of the

subsequent search warrant. The seizure of the Appellant’s cell phone cannot be

justified as an inventory search in the absence of any testimony by the State that it was

seized for that reason.

      Did the Appellant abandon his cell phone? There is no evidence that the

Appellant abandoned his cell phone. No seizure occurs under the Fourth Amendment

if police take possession of property that has been abandoned. Comer v. State, 754

S.W.2d 656, 659 (Tex. Crim. App. 1986). However, abandonment requires proof that:

(1) the individual intended to abandon the property; and (2) that he freely decided to

abandon the property. Id. Intent to abandon property is typically “inferred from

words spoken, acts done, and other objective facts and relevant circumstances.”

McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997). There is nothing to


                                          - 39 -
suggest that the Appellant intended to abandon his cell phone in this case. The

Appellant was faced with a situation where 6-8 armed policemen had come to the

door with a warrant for his arrest. He surrendered quickly, not even taking time to

dress himself. Under these circumstances, it cannot be said that he intended to

abandon his phone any more than he intended to abandon his clothing. His obvious

intent under the situation was to quickly surrender to avoid any conflict with the

police downstairs.

      4.   “Independent source” and “attenuation of taint”

      Under the “independent source” doctrine, the exclusionary rule does not

exclude evidence which is lawfully obtained through means that are independent of

the initial illegality. The Court of Criminal Appeals held in Wehrenberg v. State, 416

S.W.3d 458, 465 (Tex. Crim. App. 2013), that evidence obtained pursuant to an

independent source is not obtained in violation of the law and so is not subject to

suppression under Article 38.23. Rather, evidence is obtained in violation of the law

only if there is some causal connection between the illegal conduct and the acquisition

of evidence.

      In Wehrenberg, the Court cited the rule announced in Segura v. United States, 468

U.S. 796 (1984), that “notwithstanding a prior instance of unlawful police conduct,

evidence actually discovered and obtained pursuant to a valid search warrant is not

subject to suppression, so long as the police would have sought the warrant regardless


                                         - 40 -
of any observations made during the illegal entry.” Id., at 465-466. In Segura, the

warrant that police obtained after an initial illegal entry into the defendant’s apartment

“was issued wholly on information known to the officers before the entry into the

apartment,” and “none of the information on which the warrant was secured was

derived from or related in any way to the initial entry into petitioners’ apartment.”

Segura, 468 U.S. at 814.

       In Davila v. State, 441 S.W.3d 751 (Tex. App.-Houston [1st Dist.] 2014, pet.

ref’d), this Court concluded that an initial warrantless sweep of Davila’s home by

police was illegal. Id., at 758. However, citing Wehrenberg, this Court also found that

none of the information that was utilized to obtain the subsequent warrant to search

Davila’s house came from the prior, unlawful sweep, but was instead from an

independent source. Id., at 760. Concluding that “[B]ecause the affidavit (in support of

the search warrant) contained sufficient allegations that were independent of any

tainted information, we conclude that the affidavit established a ‘fair probability’ that

cocaine would likely be found upon searching Davila’s home.” Id., at 761.

       The independent source doctrine does not apply in the instant case because

there is an obvious causal connection between the initial illegal seizure of the

Appellant’s cell phone and the officers’ subsequent acquisition of its contents. Unlike

the facts in Wehrenberg, Segura or Davila, at the time of the initial illegal seizure of the

Appellant’s phone, the police did not have any basis for believing that the phone


                                           - 41 -
contained incriminating evidence. The State made no attempt at the suppression

hearing to establish any independent source that justified the later search warrant for

the contents of the Appellant’s cell phone. Neither the search warrant nor its

underlying affidavit was produced at the hearing, nor did the officers who testified

suggest that they had other information that constituted an independent source. For

example, if Sergeant Cegielski had testified that prior to the initial seizure of the

Appellant’s cell phone, police already had probable cause to believe that the phone

contained incriminating photos, then that may have constituted an independent

source that would have broken the link between the initial illegality of seizing the

phone and the later seizure of the photos from the phone.

      To the contrary, Cegielski admitted at the hearing that the cell phone first

became relevant only after he discovered the officers had brought it with them from

the residence (6 R.R. at 86). There was an obvious causal connection between the

procurement of the information via the subsequent warrant and the initial seizure of

the phone. No information whatsoever was produced at the suppression hearing

which suggested that the search warrant was based on independent information.

       Under the “attenuation doctrine” only evidence sufficiently attenuated from

illegal police conduct can be admitted under Article 38.23. Johnson v. State, 871 S.W.2d

744, 750-751 (Tex. Crim. App. 1994); Sims v. State, 84 S.W.3d 805, 810 (Tex. App.-

Houston [1st Dist.] 2002, no pet.). The question in this case thus becomes whether


                                         - 42 -
the subsequent warrant to search the Appellant’s cell phone was sufficiently purged of

the primary taint of the illegal seizure of the cell phone.

       It is the State’s burden to prove attenuation:

       In summary, then: A defendant has the burden of showing that
       challenged evidence was obtained as a factual result of the violation of
       law that he establishes. Once this is done, the State has—or should
       have—the burden of persuading the trial court that the causal
       connection between the violation and the State’s acquisition of the
       evidence is such that the taint was attenuated and the evidence therefore
       was not obtained in violation of the provision of law.

George E. Dix & John M. Schmolesky, 41 Texas Practice: Criminal Practice and

Procedure § 18:29 (3rd ed. 2011); Monge v. State, 276 S.W.3d 180, 184-85 (Tex. App.-

Houston [14th Dist.] 2009, no pet.).

       In Mazuca v. State, 375 S.W.3d 294 (Tex. Crim. App. 2013), which dealt with the

specific issue of whether the discovery of an outstanding arrest warrant on a driver

was an intervening circumstance that attenuated the taint of an traffic illegal stop, the

Court of Criminal Appeals cited three factors as appropriate considerations in

determining whether the discovery of physical evidence is sufficiently attenuated from

an illegal violation by the police: (1) the temporal proximity of the illegal conduct and

the seizure of incriminating evidence; (2) the presence of intervening circumstances;

and (3) the purposefulness or flagrancy of the police misconduct. Id., at 301-307. The

Court concluded that “[w]hen police find and seize physical evidence shortly after an

illegal stop, in the absence of the discovery of an outstanding arrest warrant in


                                           - 43 -
between, that physical evidence should ordinarily be suppressed, even if the police

misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment

rights.” Id. at 306. Although the Court had before it in Mazuca the common situation

of an illegal traffic stop followed by the discovery of an outstanding warrant on the

driver, it did not limit its discussion to those scenarios.

       In any event, the State did not meet its burden in the instant case. The officer

who seized the phone did not testify at the suppression hearing, so there is nothing to

refute Lela Thomas’s testimony that the officer was looking for the Appellant’s phone

when he went upstairs. As to the temporal proximity of the initial illegal seizure of the

cell phone and the subsequent search warrant, it is anyone’s guess. The State did not

produce either the search warrant for the contents of the phone or the underlying

affidavit. As for the presence of intervening circumstances which may have attenuated

the taint, the record is silent. The State did not meet its burden.

       In summary, after the Appellant met his burden of establishing that his cell

phone was seized without a search warrant, it was the State’s burden to demonstrate

that an exception to the warrant requirement existed. The State failed to provide any

testimony that justifies the warrantless seizure in this case and the trial court abused

its discretion in holding that there was a valid legal exception to the warrant

requirement.




                                            - 44 -
D. The erroneous denial of Appellant’s motion to suppress evidence resulted in
   constitutional error that resulted in harm to the Appellant

      “[T]he harm resulting from a trial court’s erroneous denial of a motion to

suppress and subsequent admission of evidence obtained in violation of the Fourth

Amendment [of the United States Constitution]” is reviewed under Texas Rule of

Appellate Procedure 44.2(a)’s constitutional standard. Hernandez v. State, 60 S.W.3d

106, 107-108 (Tex. Crim. App. 2001)(constitutional error standard applies to

admission of evidence obtained pursuant to an illegal search).

Rule of Appellate Procedure 44.2(a) states:

      If the appellate record in a criminal case reveals constitutional error that
      is subject to harmless error review, the court of appeals must reverse a
      judgment of conviction or punishment unless the court determines
      beyond a reasonable doubt that the error did not contribute to the
      conviction or punishment. (Emphasis added).

If the record as a whole supports even a “reasonable possibility” that the erroneously

admitted evidence contributed to the jury’s verdict, the judgment must be reversed

regardless of whether independent evidence is otherwise sufficient to sustain the jury’s

verdict of guilt. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

      The seizure of the Appellant’s cell phone led to the photographs on the phone

being introduced into evidence. State’s exhibit 55 and 56 were photographs taken

within an hour or so after the shooting (8 R.R. at 233). The photographs depicted,

among others, Dexter Brown, Devonte Bennett, and Deveon Griffin (8 R.R. at 233-



                                          - 45 -
234, 237). The harm that flowed from the acquisition of the contents of the phone

included the following:

      1. At the end of her opening statement, the prosecutor told the jury that she

would present evidence of the “big break” that occurred in the investigation of the

case (7 R.R. at 19), namely, the fact that Devonte Bennett, a friend of the Appellant,

had told police that he was with the Appellant the night of the shooting and that he

saw the Appellant shooting into the crowd (7 R.R. at 19). This testimony would

obviously be very important because without Bennett, the State’s case relied upon a

sole eyewitness, Oscar Jeresano.

      When he was called by the State as a witness, Bennett ultimately refused to

answer the prosecutor’s questions, but not before he did initially verify that he was

one of the persons pictured in the cell phone photograph (State’s exhibit 56) from the

Appellant’s phone (7 R.R. at 131-136, 139). He was later held in contempt of court for

refusing to testify, and was ordered to serve 180 days in jail (8 R.R. at 133-134).

      In the absence of the photographs downloaded from the Appellant’s phone,

the prosecutor’s assertion in her opening statement that Devonte Bennett was with

the Appellant the night of the shooting and saw him shoot into the crowd would have

remained just that…an assertion. However, the photographs which comprised State’s

exhibits 55 and 56 established that Bennett was indeed with the Appellant, only an




                                          - 46 -
hour after the shooting, and so lent some credence to the prosecutor’s assertion

during her opening statement.

       2. Dexter Brown was also pictured in the cell phone photographs. During his

testimony, Sergeant Cegielski recounted that Oscar Jeresano had identified Dexter

Brown from a photo spread as someone he saw at the nightclub the night of the

shooting (8 R.R. at 207-208). Cegielski testified that he believed that Dexter Brown

was one of the shooters (8 R.R. at 207). As was the case with Devonte Bennett,

photos showing the Appellant with one of the suspected shooters, just an hour after

the shooting, coupled with Cegielski’s suspicions of Brown’s involvement in the

murders, would certainly have increased the likelihood of the Appellant’s involvement

in the minds of the jury.

       3. Cegielski also used the cell phone photos to conclude that the Appellant

lied to the police about what he was wearing the night of the shooting (8 R.R. at 237-

238). Oscar Jeresano said the shooter was wearing a long-sleeved dark shirt. The

prosecutor argued in his closing that the Appellant had initially told police that he was

wearing something similar, but in the cell phone photos, he was wearing a white shirt

and red shorts (10 R.R. at 12). Thus, the Appellant’s cell phone photos were used to

impeach the Appellant’s statement to the police, and by the prosecutor in his closing

argument as evidence that the Appellant “lied about what he was wearing” (10 R.R. at

12).


                                          - 47 -
       In short, the photos from the Appellant’s cell phone provided the State with

evidence which linked the Appellant…only an hour after the shooting…to other

persons the police considered suspects and also cast doubt on the Appellant’s

credibility in the story he initially gave to police. Because there is clearly a “reasonable

possibility” that the erroneously admitted evidence from the cell phone contributed to

the jury’s verdict, the judgment must be reversed regardless of whether independent

evidence is otherwise sufficient to sustain the jury’s verdict of guilt. Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998).

                                        Issue Four

       The trial court erred in overruling defense counsel’s objection to
       the prosecutor’s closing argument, which interjected new and
       harmful facts into the proceedings through unsworn jury
       argument, namely, that a witness who had not testified at trial had
       given the Appellant’s name as someone involved in the shooting.

                                        Argument

A.     Statement of Facts

       Prior to trial, defense counsel filed a motion in limine, in which she asked that

the State approach the bench before eliciting certain evidence. Among other evidence

that was the subject of the motion was the following:

 “1. Any reference, either directly or indirectly, whether in opening statement,
     argument, jury selection, or otherwise, to the statements against my
     Client Uvukansi’s interest by Dedrick Foster, who is now deceased in
     violation of the Confrontation Clause. Defense counsel never had the
     opportunity to cross examine Dedrick Foster about these statements”
     (C.R. at 1035-1038).

                                            - 48 -
      At a brief hearing regarding the motion in limine, which took place prior to the

beginning of testimony, the trial court asked the prosecutor: “Regarding Number 1,

do you have any problems?” to which the prosecutor replied she did not (7 R.R. at 8).

      In her opening statement, the prosecutor, recounting the difficulty police

initially had in developing leads in the case, told the jury: “A man comes forward and

says he has information, and based on that information the defendant is developed as

a suspect. Now that man that came forward, Dedrick Foster, you won’t hear from

him. He was killed two weeks after talking to the police.” (7 R.R. at 17). The

prosecutor did not say…because it would have been a clear violation of the motion in

limine…that Foster had named the Appellant as being involved in the killings. From

the prosecutor’s statement, the jury was left with the bare information that Foster had

some information from which the police were able to develop the Appellant as a

suspect. It could simply have been that he had identified a photograph of the

Appellant, or that he confirmed that the Appellant was a member of the Bloods, or

provided some other type of preliminary information from which the police were able

to investigate their case further. But her remarks in her opening statement stayed

within the boundaries of what was appropriate, by not communicating to the jury that

Foster had actually told the police that the Appellant was involved in the shootings.




                                         - 49 -
      At trial, the lead investigator in the case, Officer Cegielski, was testifying

regarding the fact that his investigation into the killings was initially unsuccessful,

when the following transpired:

             “PROSECUTOR: Did you meet with Dedrick Foster?
              CEGIELSKI: Yes, ma’am.
              Q.: And during your interview with him, did the name…”

      At this point, defense counsel asked to approach the bench, apparently

concerned that the prosecutor might elicit what Foster, now deceased, had said to

Cegielski, in violation of the motion in limine and the agreement by the prosecutor

that she would not introduce anything Foster had told police. The prosecutor assured

defense counsel and the trial court that “I am not going to get him to say anything

that this witness said. I’m going to ask him some information about what he did, not

asking for what the response was from that witness.” (8 R.R. at 197).

      Then in closing argument, despite having told the jury that they would not be

hearing from Foster, and after reassuring the court and defense counsel that she had

no intention to elicit anything Foster had said to police, the prosecutor accomplished

through unsworn jury argument what she could not have gotten into evidence, and

which she had vowed not to discuss:

             “But then they (the police) got a break. Dedrick Foster came
      forward and he gave this defendant’s name as someone involved in the shooting.”
      (10 R.R. at 31)(emphasis added).




                                           - 50 -
       No evidence had been adduced that Foster had told the police that the

Appellant was “involved in the shooting.” Defense counsel objected that the

prosecutor was arguing “outside the record” that “there’s no evidence of that in the

record.” The trial court overruled the objection (10 R.R. at 31). Thus, although

obviously quite aware that it would be improper to elicit through Officer Cegielski

what a dead man had said previously, and having reassured the trial court twice that

she would not do so, the prosecutor improperly conveyed to the jury what Foster had

said to the police during her argument, by telling them that “he gave this defendant’s

name as someone involved in the shooting.” It is important to remember that the

defense in this case rested primarily on the fact that there was only one eyewitness

who had testified that the Appellant was the shooter, and had argued that his

testimony was not credible. The effect of the prosecutor’s improper jury argument

was to inform the jury, through her unsworn jury argument, that there was another

witness who told the police that the Appellant was involved in the murders, a witness

that the defense had no opportunity to investigate or cross-examine. 6

B.     Error and harm analysis

             The most fundamental rule of closing argument is that counsel
       must confine their arguments to the evidence that was introduced during
6
  This was not the only time in the trial that the prosecutor informed the jury, through her own
unsworn commentary, that a witness who did not testify had told police that the Appellant was the
shooter. During her opening statement, the prosecutor told the jury that Devonte Bennett saw the
Appellant “shooting those people” (7 R.R. at 19). Bennett refused to testify (7 R.R. at 131-146).
Thus, through her opening statement and her closing argument, the prosecutor effectively informed
the jury of two people who linked the Appellant to the murder…without eliciting a word of
testimony from either witness.
                                             - 51 -
       the trial and to reasonable deductions from that evidence. Counsel may
       not argue outside that record and ask the jury to speculate as to what
       evidence might have been introduced. It would be of little benefit to
       have an elaborate set of rules defining what evidence can and cannot be
       introduced during trial if counsel could ignore those rules and interject
       new matters by statements during closing argument. Evidence must be
       received from the witness stand, not from the mouths of counsel.

George E. Dix & John M. Schmolesky, 43 Texas Practice: Criminal Practice and

Procedure § 45:9 (3rd ed. 2011). The law requires, and presumes, a fair trial, free from

improper argument by the State. Acosta v. State, 411 S.W.3d 76, 92-93 (Tex. App.-

Houston [1st Dist.] 2013, no pet.).

       The suggestion that Dedrick Foster “gave this defendant’s name as someone

involved in the shooting” was never raised in the trial, was not a reasonable deduction

from the evidence, and was not an answer to any argument of opposing counsel.

       To complain of improper jury argument on appeal, a defendant must generally

have objected to the argument and pursue the objection to an adverse ruling. Cockrell

v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Such was done in this case when

defense counsel objected that the prosecutor was arguing “outside the record” and

that “there’s no evidence of that in the record.”       The trial court overruled the

objection (10 R.R. at 31). Therefore, the objection was met with an adverse ruling and

the issue is preserved.

       Although it is an area of special concern, argument inviting speculation
       on evidence outside the record does not constitute constitutional error.
       Rather, the error is judged under the standard applicable to


                                         - 52 -
      nonconstitutional error, whether the error had a substantial and injurious
      effect or influence in determining the jury’s verdict.

      In determining if the error is harmless, it is important whether the trial
      court overruled the trial objection or sustained it. If the trial court
      overruled an objection to an improper argument, that has the effect, in
      the eyes of the jury, of the trial court approving of the argument and
      makes it more likely an appellate court will find the error reversible.

George E. Dix & John M. Schmolesky, 43 Texas Practice: Criminal Practice and

Procedure § 45:10 (3rd ed. 2011).

      The harm standard in Texas for nonconstitutional error in jury argument is

taken from the federal standard:

      (1) the severity of the misconduct; (2) measures adopted to cure the

      misconduct; and (3) the certainty of conviction absent the misconduct.

See United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994), cert. denied, 514 U.S.

1087 (1995); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (applying

federal test in determining that improper prosecution argument was harmless error).

      As to the severity of the prosecutor’s misconduct in arguing as she did, her

argument came after two previous junctures in the trial where she indicated that she

understood that any mention of what Dedrick Foster had told police about the

Appellant’s involvement in the murder was inadmissible and inappropriate: at the

hearing held pursuant to the motion in limine, and as she questioned Officer

Cegielski. The prosecutor cannot be said to have misunderstood the significance of

her comments in this case, where the gravamen of the defense was that the only

                                        - 53 -
eyewitness, Oscar Jeresano, was mistaken about his identification of the Appellant as

a shooter. Telling the jury that Dedrick Foster had “gave this defendant’s name as

someone involved in the shooting” informed the jury, through the prosecutor’s

argument, that there was more than just eyewitness testimony. There was also an

absent witness, whom the jury had also been informed had been killed, who linked the

Appellant to the shooting. Not only did this bolster the testimony of the single

eyewitness to the offense, but it also ran the extreme risk of the jury wondering why

someone whom they now understood to have linked the Appellant to the shooting

had been killed. Obviously, as defense counsel made clear, she had not been given any

opportunity to cross-examine Foster.

       As stated supra, no curative measures were taken by the trial court when the

defense objected. To the contrary, the trial court overruled the objection, thereby

indicating that the prosecutor’s interjection of unproven facts was appropriate and

that the jury was free to consider it.

       Finally, with respect to the certainty of conviction absent the misconduct, it is

impossible to say what effect the prosecutor’s new information had on the jury, but it

is reasonable to conclude that it was critical in a one-eyewitness case. The prosecutor’s

careful assurances at both the motion in limine hearing and during Cegielski’s

testimony, which revealed her understanding of how explosive any testimony would

be concerning what Foster had told police, cannot be reconciled with any conclusion


                                          - 54 -
that informing the jury of what he said for the first time at closing argument was

insignificant since a conviction was certain anyway.

      The prosecutor’s reckless interjection of new and harmful facts through

unsworn jury argument cannot be disregarded in this case because it affected the

Appellant’s substantial rights under Tex. R. App. P. 44.2(b), specifically, his right to a

fair trial based upon evidence received from the witness stand, rather than from the

prosecutor’s mouth. As a result, the judgment of conviction should be reversed, and

the case remanded for a new trial.

                                 PRAYER FOR RELIEF

      Feanyichi Uvukansi prays that for the reasons stated, this Court reverse the

judgment of conviction and remand this case for a new trial or in the alternative,

reform the judgment to reflect a conviction for murder, and remand the case for a

new punishment hearing.

                                                   Respectfully submitted,
                                                   Alexander Bunin
                                                   Chief Public Defender
                                                   Harris County Texas

                                                   /s/ Bob Wicoff
                                                   Bob Wicoff
                                                   Assistant Public Defender
                                                   Harris County Texas
                                                   1201 Franklin, 13th floor
                                                   Houston Texas 77002
                                                   (713) 274-6781
                                                   TBA No. 21422700

                                          - 55 -
                              CERTIFICATE OF SERVICE

       A true copy of this brief has been served on the appellate division of the Harris

County District Attorney’s Office on the 9th of March, 2015, by emailing a copy

through the efile.txcourts.gov system

                                                  /s/ Bob Wicoff
                                                  Bob Wicoff


                           CERTIFICATE OF COMPLIANCE

       The undersigned certifies that this brief complies with the length requirements

of Tex. R. App. P. 9.4(i). Specifically, the foregoing brief contains a total of 14,295

words, which is the total word count excluding those matters listed in Tex. R. App. P.

9.4(i)(1).

                                                  /s/ Bob Wicoff
                                                  Bob Wicoff




                                         - 56 -
