                                                                                              PD-1396-14
                                                                            COURT OF CRIMINAL APPEALS
                                                                                             AUSTIN, TEXAS
                                                                            Transmitted 5/21/2015 1:35:18 PM
                                                                              Accepted 5/26/2015 8:28:49 AM
                                                                                              ABEL ACOSTA
                                                                                                      CLERK



                        Nicholas “Nico” LaHood
                          Criminal District Attorney
                                  Bexar County, Texas

May 21, 2015

Mr. Abel Acosta, Clerk
Court of Criminal Appeals                                                  May 26, 2015
P.O. Box 12308
Austin TX 78711

       Re:    Ford v. State, No. PD-1396-14

Dear Mr. Acosta:

     This is in response to the letter filed by Cynthia Orr, counsel for Appellant Jon
Thomas Ford, following our oral argument in that case yesterday.

        First Appellant argues again that the defense relied on the Texas Constitution in
the trial court. The Fourth Court held this claim was not preserved, and Appellant has not
challenged that holding on petition for discretionary review. Furthermore, it is not true.
Ms. Orr cites a portion of the trial record in which defense trial counsel said, “That
application and order does not comply with Texas law,” to argue that this vague claim
invoked the Texas constitution. It did not. This was a reference to defense counsel’s
claim in the trial court that the application had to be signed by the elected district
attorney, not an assistant district attorney. (RR4 13) But he was taking this proposition
from Sec. 2 of Art. 18.21, regarding an application for pen registers. The same language
is not found in Sec. 5, the section at issue in this appeal. This claim was so obviously
without merit it was not raised on appeal. Defense counsel never mentioned the Texas
constitution in the trial court.

        Much of what follows in the letter has been raised before. On page 2 Appellant
argues that Justice Sotomayor “rejected” the third party record doctrine “in the context of
digital data.” The opinion to which she refers, U.S. v. Jones, did not involve the
collection of cell phone data, nor did Justice Sotomayor singlehandedly overrule
longstanding Supreme Court precedents.

      I have already responded in my brief to the claim that Appellant did not
voluntarily convey information when he received texts. The Fourth Court held that

       Paul Elizondo Tower – 101 W. Nueva St., Fourth Floor - San Antonio, Texas 78205
                                      (210) 335-2311
                          For Victim Assistance call (210) 335-2105
Appellant’s voluntary acts that conveyed his location information to a third party were
obtaining cell phone coverage and a cell phone and carrying it with him the night of the
murder. Appellant has not challenged that holding.

         As for the passing claim on the bottom of page 3 that trial defense counsel could
not obtain the cell phone records, the prosecution provided those records to the defense.
It is clear from the trial record that Mr. DeGuerin had all the records the State had.

        Appellant also discusses cases in which data other than locations was collected in
one way or another. This has no application to this case, in which the State introduced
only the records showing Appellant’s general locations. His friend Alan Tarver testified
to the contents of the texts he sent, which were trivial and irrelevant to the prosecution.

       Finally, the Richardson case, as I have pointed out, relies on the Texas
Constitution, not preserved by Appellant, and has no holding and no application to this
case.

        Ms. Orr’s second letter seems to argue that the prosecutor conceded something in
the trial court, which is not the case. Ms. Melton advanced several arguments, all of them
valid, with a final fall-back position saying even if the application was improper police
acted in good faith. This was not a concession. It was a good attorney making a series of
arguments.

       Please convey this letter to the Court and thank the judges on my behalf for their
respectful and collegial attention during our oral argument.

                                          Very truly yours,
                                                 /s/ Jay Brandon




copy: Cynthia Orr


       Paul Elizondo Tower – 101 W. Nueva St., Fourth Floor - San Antonio, Texas 78205
                                      (210) 335-2311
                          For Victim Assistance call (210) 335-2105
