Affirmed and Opinion filed October 31 , 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00309-CR

                BRANDON JOHNSON BARFIELD, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1229325

                                OPINION


      Appellant Brandon Johnson Barfield appeals from his conviction for murder.
A jury found appellant guilty and assessed punishment at 22 years and six months’
imprisonment.   In two issues, appellant contends that the trial court erred in
admitting certain exhibits into evidence. First, appellant challenges the admission
of cell tower records that were used to trace appellant’s approximate locations
during times relevant to the alleged murder and attempt to dispose of the body,
arguing that the State’s obtaining the records without a search warrant violated the
Fourth Amendment’s prohibition against unlawful searches and seizures. Second,
appellant challenges the authentication and admission of a “jailhouse letter”
allegedly written by appellant and apparently seeking to establish an alibi. We
affirm.

                                   Background

      On August 18, 2009, Houston police officers and firefighters responding to a
9-1-1 call reporting a fire discovered that the flames originated from a human body
lying in the front yard of a house. The body was subsequently determined by DNA
testing to be that of complainant Roger McCray. An autopsy revealed the cause of
death to be a gunshot wound to the head and the manner of death to be homicide.
Next to the body at the scene, officers found part of a cardboard box with a Lowe’s
store label on it bearing the name “Lynell Johnson.”        After attaining further
information from Lowe’s, Sergeant Robert Blain, an investigator assigned to the
case, contacted Johnson by telephone. Johnson stated that he was out of town and
had been for over a week, but gave Blain permission to search his home before his
return.

      Officer David Smith of the HPD Forensics Division testified that he
collected several pieces of evidence at Johnson’s home that indicated a possible
connection between the home and complainant’s death. That evidence included
pieces of cardboard that appeared to match the cardboard found next to
complainant’s body, pieces of broken glass on the floor in the kitchen, a tarp
covered in a reddish fluid, a wet washcloth with red stains, a steak knife with
cardboard fibers on the blade found on the garage floor, and a plastic gasoline can
that showed signs of having been exposed to high temperature.           Smith also
observed and photographed a number of possible bloodstains at the property, and

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he examined and photographed a Honda Element parked in the garage. The
Element had apparently recently been cleaned on the inside of the back hatch; a
pair of gloves, a bottle of cleaner, and some brushes were discovered behind the
seats. Smith additionally took swabs of what appeared to be blood from the
exterior of the Element’s hatch.

       Officer Dewitt Lambright, who works at the HPD vehicle examination
building, processed the Element for evidence. Among other things, he collected
swabs of what appeared to be blood from the interior and exterior of the vehicle.
He also took fingerprints from the exterior. Lab analysis subsequently showed that
DNA from the swabs matched complainant’s, and a fingerprint expert determined
that some of the prints matched those of appellant.

       Sergeant Blaine and his partner contacted Johnson’s relatives who had
access to the home, including appellant, who is Johnson’s grandson. Sergeant
Blain interviewed appellant at the home; the interview was recorded and played for
the jury at trial. When asked if he knew why the police were there, appellant
replied that it had something to do with a murder or someone getting shot, although
such information had yet to be released to the public. Appellant further revealed
that he had been in possession of the Element between 1 p.m. on August 18, 2009,
and 10 a.m. on August 19, when he returned it to Johnson’s garage. He stated that
he cleaned out the back of the vehicle because he had used it to take barbecue
wood to his uncle, who lived near Arcola. Appellant additionally offered that he
used the Element to pick up complainant, whom appellant described as a childhood
friend.1 Appellant said that he took complainant to complainant’s brother’s house,
but when no one answered the door, appellant dropped complainant off at an

       1
         At trial, the State called Brittany Washington as a witness, and she testified that she saw
appellant pick up complainant while driving a Honda Element.

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apartment complex. Appellant stated that he then went to see a female friend
named Nikki and then to his friend Byron’s house. Appellant also mentioned that
he had dropped and broken a blue glass inside Johnson’s house and had not
cleaned it up. Blain was unable to locate the person named Byron appellant
mentioned.

      Appellant accompanied officers to police headquarters, where one officer
noticed a strong odor of gasoline on appellant’s hands and that hair on appellant’s
forearms and one hand had been singed. Appellant was arrested and charged with
murdering complainant by shooting him with a deadly weapon, namely a firearm.

      At trial, in addition to the evidence discussed above, the State offered cell
tower records along with the expert testimony of Officer Michael Rone to establish
appellant’s whereabouts during times relevant to complainant’s murder and the
attempted disposal of the body. The State also used the evidence to show that
appellant had not traveled “almost to Arcola” to deliver wood as he had indicated.
The State obtained these records through use of a subpoena and not by obtaining a
search warrant. Defense counsel objected to this evidence, arguing that obtaining
the records without a search warrant violated the Fourth Amendment’s prohibition
on unlawful searches and seizures. The trial court overruled the objection and
permitted the records to be admitted into evidence as well as Rone’s testimony
regarding the records.

      The State also offered a letter purportedly written by appellant while in jail
and possibly attempting to set up an alibi. Specifically in the letter, a request is
made for the male recipient to “[c]all this girl name Litisha [telephone number
omitted] tell her that I said if she ever gets question [sic] to just say I stopped by
her house around 4 or 5 pm and from there went to my potna Byron house [sic].
That’s critical . . . and I really need her to do that.” Defense counsel objected to

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the letter, asserting that it had not been properly authenticated.       As will be
described in more detail below, the State primarily sought to authenticate the letter
through the testimony of Sergeant Mark Schmidt, a deputy sheriff at the Harris
County Jail who intercepted the letter, as well as through the contents of the letter
itself. The trial court overruled counsel’s objection and admitted the letter into
evidence.

      At the close of trial, the jury found appellant guilty of murder and assessed
punishment at 22 years and six months in prison. On appeal, he challenges the
admission of the cell tower records and related expert testimony as well as the
admission of the jailhouse letter.

                                 Cell Tower Records

      In his first issue, appellant contends that the State’s obtaining of cell tower
data from appellant’s service provider without a search warrant violated the Fourth
Amendment’s prohibition on unlawful searches and seizures. U.S. Const. amend.
IV. On that basis, he further contends that admission of the cell tower records and
related expert testimony violated the exclusionary rule. See Mapp v. Ohio, 367
U.S. 643, 656 (1961); State v. Mazuca, 375 S.W.3d 294, 300 (Tex. Crim. App.
2012). Although we generally defer to a trial court’s determination of historical
facts and credibility, we review a constitutional legal ruling, such as whether a
search or seizure governed by the Fourth Amendment occurred in a particular case,
under a de novo standard of review. See Wall v. State, 184 S.W.3d 730, 742 (Tex.
Crim. App. 2006).

      In support of his position, appellant relies on the United States Supreme
Court’s recent opinion in United States v. Jones, 132 S. Ct. 945 (2012), and a
recent federal district court opinion in In re Application of the United States for
Historical Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. 2010), rev’d, 724 F.3d
                                         5
600 (5th Cir. 2013). We find the Jones case, which dealt with placement of a GPS
tracking device on a subject’s vehicle, to be distinguishable on the facts.
Moreover, as noted, subsequent to appellant’s briefing in this case, the Fifth Circuit
reversed the lower court’s ruling in In re Application of the United States. 724
F.3d 600. We concur with the reasoning expressed in the Fifth Circuit’s opinion.

       In Jones, the Court held that attaching a GPS tracking device to a vehicle
and using the device to monitor the vehicle’s movements was a search under the
Fourth Amendment. 132 S. Ct. at 949.2 Appellant here contends that obtaining
cell tower records is analogous to placing a GPS tracking device essentially
because the results are similar in nature: the State discovers where a suspect
travelled over a prolonged period of time, in one circumstance, by directly tracing
his vehicle and in the other, by using cell tower data to deduce what general areas
the suspect made telephone calls from over a period of time. The most obvious
distinguishing factors between the circumstances in Jones and in this case are who
initially collected the data in question and whether they did so with the respective
suspect’s knowledge. In Jones, the government itself obtained the information by
covertly mounting and monitoring a GPS tracking device on the suspect’s vehicle.
Id. at 948. Here, the data was compiled and stored by appellant’s service provider
each time he voluntarily and knowingly made a call with his cell phone. Jones is

       2
          The Court in Jones expressed no opinion regarding whether the search therein was
reasonable or lawful because that issue had not been raised below. 132 S. Ct. at 954. Although
four concurring justices in Jones would have held that the defendant in Jones had a “reasonable
expectation of privacy” that was violated by use of the tracking device, the majority based its
conclusion on a theory of trespass and not on a reasonable expectation of privacy. Id. at 949-54;
id. at 958, 962, 964 (Alito, J., concurring in the judgment) (joined by Justices Ginsburg, Breyer,
and Kagan). To be clear, the majority did not reject “reasonable expectations” as a test for
whether a search has occurred; rather, the majority merely rejected the necessity or propriety of
its use under the circumstances in Jones. Id. at 949-54; see also Florida v. Jardines, 133 S. Ct.
1409, 1417 (2013) (explaining that the reasonable-expectations test first announced in Katz v.
United States, 389 U.S. 347 (1992), had been added to and did not replace traditional Fourth
Amendment precedent based on property interests).

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therefore readily distinguishable on the facts.3

       The facts in In re Application of the United States are far more analogous to
those presently presented.         724 F.3d 600.        In each case, a government actor
obtained historical cell tower data—through the use of a subpoena or court order
instead of a search warrant—from a third-party service provider, which had stored
the data by its own volition and not pursuant to any directive from the government.
Id. at 611-12.4 The Fifth Circuit opinion hinges on a determination of whether
individuals have a “reasonable expectation of privacy” in their location
information transmitted each time they make a cell phone call and received and
stored by their service provider. Id. at 615. The Fifth Circuit determined that no
such reasonable expectation existed. Id.5 Appellant here contends, with little
exposition, that his reasonable expectation of privacy was violated by the State’s
obtaining of the cell tower records without a warrant.

       3
          It should also be noted that the trespass theory used by the Jones majority has no
application in the present case because the State here obtained the records from a third party and
performed no act that could be considered trespass, even broadly defined. Therefore, the
analysis is properly under the Katz reasonable-expectations test. See In re Application of the
United States, 724 F.3d at 606.
       4
         In In re Application of the United States, the court speculated that a service provider
may collect and store cell site data “to monitor or optimize service on its network or to
accurately bill its customers for the segments of its network that they use.” 724 F.3d at 612.
There is no specific evidence in the present case as to why appellant’s service provider collected
and stored the information, but it is clear that the government only sought the information after it
was stored and did not require its collection.
       5
         The government in In re Application of the United States obtained the cell tower records
pursuant to provisions of the Federal Stored Communications Act, which permit the government
to obtain such records through a court order. 18 U.S.C. § 2703; 724 F.3d at 602. Requests under
section 2703 need only meet a lesser “specific and articulable facts” standard and not the stricter
Fourth Amendment probable cause standard. In re Application of the United States, 724 F.3d at
615. In the present case, the State obtained the records through issuance of a subpoena and not a
search warrant. The record here does not reveal anything further regarding the method used to
obtain the records. Appellant, however, limits his appellate complaints to the securing of the
records without a search warrant; accordingly, we need not consider whether the means used met
any other possible criteria.

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      In determining that there was no reasonable expectation of privacy in such
third party data, the Fifth Circuit emphasized the fact that the data in question was
created by a third party provider each time appellant voluntarily used his cell
phone to make a call, explaining that “[w]hat a person knowingly exposes to the
public, even in his own home or office, is not a subject of Fourth Amendment
protection.” Id. at 609 (quoting Katz v. United States, 389 U.S. 347, 351 (1992)),
610. Although individuals may desire such information to remain private, the
protection of a more general right of privacy, such as would be required to protect
such transmissions, is not a matter for Fourth Amendment jurisprudence but is
instead an issue for the marketplace or the political process. Id. at 609 (citing Katz,
389 U.S. at 350-51), 615.

      When “an individual knowingly exposes his activities to third parties, he
surrenders Fourth Amendment protections, and, if the Government is subsequently
called upon to investigate his activities for possible violations of the law, it is free
to seek out these third parties, to inspect their records, and to probe their
recollections for evidence.” Id. at 610 (quoting Reporters Comm. for Freedom of
Press v. Am. Tel. & Tel. Co., 593 F.2d 1030, 1043 (D.C. Cir. 1978)). The mere
fortuity of whether or not the third party, in its own discretion, elects to store the
information does not make any constitutional difference.          Id. (citing Smith v.
Maryland, 442 U.S. 735, 745 (1979)). Once the individual exposes information to
a third party, it can be used for any purpose, including conveying it to law
enforcement authorities. Id. (citing SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735,
743 (1984)).

      The Fifth Circuit was careful to distinguish between the content of
communications, i.e., a phone conversation or text, where the third-party provider
simply acts as a conduit for the content, and data collected and stored by the third-

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party provider for its own business purposes, such as cell tower location or routing
information. See id. at 611 (limiting the records that a third-party provider can be
requested to turn over to transactions in which the record-keeper is a party) (citing
Smith, 442 U.S. at 741, and United States v. Forrester, 512 F.2d 500, 511 (9th Cir.
2008)). The provider’s records of transactions to which it was a party (such as a
caller’s conveying location information to the provider via cell tower data) are
simply business records memorializing the transaction. Id. at 612.

         Lastly, the Fifth Circuit emphasized that the transmission of location
information by the cell user to the service provider is voluntary, specifically
pointing out that users know they convey such information because they know
generally that cell phones exchange signals with nearby cell towers, that if they are
in an area without network towers, their call will not connect, and if they are in an
area with heavy cell usage, they may also have trouble connecting. Id. at 612-13;
see also Smith, 442 U.S. at 742 (explaining why landline telephone users can be
held to understand that they convey telephone numbers to their service providers
when they place a call).      Ultimately, the user voluntarily decides to obtain a cell
phone, choose a provider, and make a call from a particular location. Id. at 614.

         We concur in the Fifth Circuit’s analysis of this issue. The State’s obtaining
of cell tower records from the third-party provider did not violate reasonable
privacy expectations as defined by Katz and its progeny. 389 U.S. at 353; see also
In re Application of the United States, 724 F.3d at 605-06, 609-15. Consequently,
the trial court did not violate the exclusionary rule in admitting the cell tower
records and related expert testimony into evidence. We overrule appellant’s first
issue.

                                    Jailhouse Letter

         In his second issue, appellant contends that the trial court erred in admitting
                                            9
a jailhouse letter allegedly written by appellant seeking to establish an alibi.
Appellant maintains that the State failed to properly authenticate the letter. Under
Texas Rule of Evidence 901, “[t]he requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” Tex. R.
Evid. 901(a). Such authentication may be accomplished by testimony from a
witness with knowledge that the item in question is what it is claimed to be. Id.
901(b)(1). The proponent is not required to establish beyond all doubt that the
item is what the proponent claims it is. Batiste v. State, No. AP-76600, 2013 WL
2424134, at *6 (Tex. Crim. App. June 5, 2013). Moreover, the trial court need not
be persuaded that the proffered evidence is authentic; the key question for
admissibility is simply whether the proponent has supplied facts sufficient to
support a reasonable jury determination that the evidence is authentic. Tienda v.
State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). We review the trial court’s
ruling on authentication issues under an abuse of discretion standard. See Angleton
v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998); Page v. State, 125 S.W.3d
640, 648 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

      Here, the State sought to authenticate the letter primarily through the
testimony of Sergeant Mark Schmidt and the contents of the letter itself as they
related to appellant’s own earlier statement during his interview with Sergeant
Blaine. Sergeant Schmidt testified that as a part of his job duties, he monitors
incoming and outgoing mail from the Harris County jail system. He explained that
not all inmate mail is monitored but that a “mail watch” had been requested for
appellant. Schmidt stated that inmate mail is collected from secure mailboxes in
each cell block, where mail is placed by the inmates. When there is a mail watch
for a particular inmate, their mail will be photocopied, with the copy going to the


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district attorney or investigator who requested the watch. For outgoing mail,
inmates are required to include on the envelope their name, unique inmate
identification number (called a Systems Person Number or “SPN”), the address
and cell block of the jail facility where the inmate is housed, and the city, state, and
zip code. Schmidt specifically testified that the envelope for the jailhouse letter in
question, a copy of which was admitted into evidence as State’s Exhibit 154,
contained the unique identifiers indicating appellant placed the letter into the
system. Schmidt further noted the letter bore a signature and did not appear to
have been tampered with in any way except being “hole punched.” On voir dire
examination by defense counsel, Schmidt acknowledged that inmates had been
known to send letters using another inmate’s name, that he (Schmidt) was not a
handwriting expert, and that he could not verify that the signature on the letter was
in fact appellant’s.

       When counsel objected to admission of the letter for lack of proper
authentication, the prosecutor pointed out that beyond the unique identifiers placed
on the envelope, the contents of the letter echoed statements appellant made in his
recorded interview with Sergeant Blaine. Specifically, in the letter, a request is
made for the male recipient of the letter to contact a particular female and tell her
that if she gets questioned, she should say that appellant stopped by her house
around 4 or 5 p.m. on the day of the murder and then went to someone named
Byron’s house. These statements, if made by the female in question to police,
would have supported the version of events appellant related to Sergeant Blaine:
that after dropping complainant off at a particular location, appellant proceeded to
see a female friend and then to his friend Byron’s house.6


       6
           In the interview, appellant stated that the female friend’s name was “Nikki,” but in the
letter, the request was directed toward a female named “Litisha.”

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      We hold that the combination of the unique identifiers and the contents in
line with appellant’s earlier comments to police was sufficient to support a finding
that the matter in question is what its proponent claims, particularly where
appellant has not presented any evidence suggesting tampering or falsification has
occurred. See Tex. R. Evid. 901(a); Tienda, 358 S.W.3d at 638; see also Druery v.
State, 225 S.W.3d 491, 502-03 (Tex. Crim. App. 2007) (holding facts letter
purported to be from inmate and contained information that inmate would likely
have possessed were sufficient to authenticate letter when inmate did not present
any evidence of tampering or other fraud concerning the letter). The trial court did
not abuse its discretion in admitting the letter over appellant’s authentication
objection. Accordingly, we overrule appellant’s second issue.

      We affirm the trial court’s judgment.


                                      /s/     Martha Hill Jamison
                                              Justice


Panel consists of Justices Boyce, Jamison, and Busby.
Publish — TEX. R. APP. P. 47.2(b).




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