Longoria, Daniel Frank Jr.

76S-/5
PETITION NO. PD-0768-15

IN THE
ORIGINAL
COURT OF CRIMINAL APPEALS

AT AUSTIN, TEXAS

DANIEL FRANK LONGORIA, Jr PETITIONER

Vs

THE STATE OF TEXAS RESPONDANT

PETITIONER'S PETITION FOR DISCRETIONARY REVIEW

On Appeal from the Ninth Judicial" District Court of Appeals at

Beaumont in No. 09-13-00169-Cr from the 221st Judicial District

Court of Montgomery County in Nov ?12-05:-O5213-CR.

Daniel Frank Longoria, Jr,
FILED IN #01851803-Coffield
COURT OF CRIMINAL APPEALS
2661 FM 2054
OCT 0 i 2C15
Tenn.Colony, Tx. 75884
Abel Acosta, Clerk Pro se.

RECEIVED IN
COURT OF CRIMINAL APPEALS

SEP 29 2015
ORAL ARGUMENT REQUESTED

Abet Acosta, Clerk
 IDENTITY OF JUSTICES, JUDGE, PARTIES, AND COUNSEL

JUSTICES: Before Kreger, Horton, and Leanne Johnson (opining Jus
tice): 1001 Pearl St., ste. 330, Beaumont, Tx. 77701.

JUDGE AT TRIAL: Honorable Lisa Michalk: 221st Judicial District

Court, 207 West Phillips, Conroe, Texas 77301.

PETITIONER: Daniel Frank Longoria, Jr: #01851803, Coffield unit,

2661 FM 2054, Term.Colony, Tx. 75884.

PETITIONER'S APPELLATE COUNSEL: Mr. Darin J. Ray: 902 N. San fiv ".

Jacinto st., Conroe, Texas 77301.

PETITOINER'S TRIAL COUNSELS :'Mlcheal Griffin (1st chair): 122 W.

Davis st., Conroe, Texas 77301; and Mr. Brian Cain (2nd chair):
122 W. Davis St., Conroe, Texas 77301.

RESPONDANT: The State of Texas.

RESPONDANT'S APPELLATE COUNSEL: Mr. Bill Delmore: 207 W. Phillips

Second Floor, Conroe, Texas 77301.

RESPONDANT'S TRIAL COUNSEL: Ms. Jo Ann Linzer (1st chair): 207 W.

Phillips, Second Floor, Conroe, Texas 77301;;and Ms. Mary Nan

Huffman (2nd chair): 207 W. Phillips, Second Floor, Conroe, Texas

77301.

LONGORIA V. STATE PAGE ii
 TABLE OF CONTENTS

CONTENTS: PAGE #
Cover i

Identity of Justices, Judge, Parties, and Counsel ii
Table of Contents iii

Index of Authorities v

Statement Regarding Oral Argument vri'i

Statement of the Case viii

Statement of Procedural History ix

Statement of Jurisdiction x

Questions for Review: xi

1* Allowing GPS technology by another county
(showing Petitioner being on.the leg monitor
during guilt/innocence), and serving as evi
dence of character conformity, rather than
proving consciousness of guilt or flight of
the crime. Should there.be a standing aut-
hority(-ies) concerning the admissibility of
the GPS leg monitoring? See RR4, 177-184;
RR5, 50-67; 1-3

2' Acknowledging the fact that the Ninth
Court of Appeals held the GPS technology was
relevant to the Petitioner's case; did the
Ninth Court of Appeals unreasonably depart
from the accepted and usual standard of re-
valancy, when it failed to Acknowledge whet
her the GPS technology was either more pro
bable or less probable than it would be '•"•.:
without the evidence? See RR4, 177-184; RR5,
50-67. 3-9

LONGORIA V. STATE PAGE lii
 TABLE OF CONTENTS

CONTENTS: PAGE #

3* Calling for this Honorable Court of
Criminal Appeals' power of supervision,
was the Ninth Court of Appeals' decision of
the probative value of the evidence not be
ing sustantially outweighed by the danger of
unfair prejudice unreasonably egnored other
facts (admitted by the State) that severely
reduced the probative value of the GPS sys
tem? See RR4,ahd:RR5^generally. 7 9-13
3b* Does this conflict with this Honorable
Court of Criminal Appeal's decisions on the
same fact issue? See RR4, 177-184; RR5, 50-
67. 9-13

Prayer for Relief 14

Inmate Declaration 15

Proof of Mailing 16

Appendix A: Affixed

The Ninth Court of Appeals Memorandum Opinion by:

Justices Leanne Johnson (opining Justice), Kreger, and
Horton—Affirming trial courts judgement on June 25, 2014.

L0NG0RIA V. STATE PAGE iv
 INDEX OF AUTHORITIES

CASELAW: PAGE #

Bigby v. State, 892 S.W.2d 864, 883 (Tex.App.Crim.
1994) 10,11,12
Brown v. State, 163. S.W.3d 818 (Tex.App.--Dallas,
2005) 2

Dixon v. State, No. 01-11-00443-CR (Tex.App. --
Houston [1st Dist] June 28, 2012)(not designated
. for publication) 2

Ex Parte Daniel F. Longoria, Jr., No.WR-83,036-01

^~?^- (-Tex. Crim. App. June 3, 2015(per Curiam)(not de
signated for publication) ^x
Gilgliobianco v. State, 210 S.W.3d 637 (Tex.Crim.App.

2006) 10,11

Ladrier v. State, 868 S.W.2d 417 (Tex.App.--Tyler,
1993) 5,7

Longoria v. State, No. PD-0768-15 (Tex.Crim.App.
June 26, 2015) ix
Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.
1990) 4,10

Robinson v. State, 368 S.W.3d 588 (Tex;App.--Austin,
2012) 2

Saenz v. State, No. 13-10-00216-CR (Tex.App. --Corpus
Christi, February 17, 2011)(not designated for
publication) 2
Tennison v. State, 969 S.W.2d 578 (Tex.App-- Texar-

LONGORIA V. STATE PAGE v
 INDEX OF AUTHORITIES

GASELAW: PAGE #

kana, 1998) 6,7

Wilson v. State, 195 S.W.3d 193 (Tex.App.-- San

Antonio 2006)

TEXAS RULES OF APPELLATE PROCEDURE:

Rule 9.3(b) IX

Rule 66.3(a) x,9,12

Rule 66.3(f) x,3,9,12

TEXAS RULES OF EVIDENCE:

Rule 401

Rule 404(b) 5,7

LONGORIA V. STATE PAGE vi
 STATEMENT REGARDING ORAL ARGUMENT

Petitioner believes that oral argument will be beneficial to

this Honorable Court of Criminal Appeals because of the ever

changing state of the caselaw within Texas, and the lack of Pre
cedent concerning the GPS Techology pertaining to Petitioner's
Question Number 1.

LONGORIA V. STATE PAGE vii
 STATEMENT OF THE CASE

On September 11, 2012, the Petitioner was indicted for

murder, and the Petitioner plead not guilty to the charged of

fense. CR, 24; RR3, 5. A jury was empanelled on March 18, 2013,

and the jury found the Petitioner guilty for murder. RR6, 69.

After hearing additional evidence, the same jury assessed punish

ment at life in the Texas Department of Criminal Justice on

March 21, 2013. RR7, 91.

LONGORIA V. STATE PAGE viii
 STATEMENT OF PROCEDURAL HISTORY

A Jury found Petiioner guilty of Murder and sentenced him to

life in prison on March 21, 2013. RR7, 91. The Petitioner pro

perly filed a notice of appeal to the Ninth Court of Appeals at

Beaumont. Cr, 111; Appendix A *1. Justices Leanne Johnson (opin

ing Justice), Kreger, and Horton Affirmed the trial courts Judge
ment on June 25, 2014. Appendix A *10. The Petitioner did:not

file a motion for rehearing within the 9th Court of Appeals.

The Petitioner filed a Habeas Application to seek for .an

out-of-time Petitioner.' for Discretionary Review (PDR) . See Ex
Parte Daniel F. Longoria, Jr., No. WR-83,036-01 (Tex.Crim.App.
June 3, 2015)(Per Curiam). This Honorable Court granted the

Petitioner the ability to file an out-of-time PDR on June 3, 2015

id. The Petitioner was granted an extention of time by this

Honorable Court on June 26, 2015. See Longoria v. State, No. PD-

0768-15 (Tex.Crim.App. June 26, 2015)(Postcard)(This Honorable
Court suspended rule 9.3(b) of the T.R.A.P. on the same day for
the same cause number).

The Petitioner's deadline to file his PDR falls on Sept

ember 28, 2015. id. Petitioner now tiemly files his PDR on or

before September 28, 2015.

LONGORIA V. STATE PAGE ix
 STATEMENT OF JURISDICTION

1* Pursuant to the Texas Rules of Appellate Procedure 66.3
(a), the Ninth Court of Appeals' decision is in conflict with
other Precedent law on the same fact and law issue.

2* Pursuant to the Texas Rules of Appellate Procedure 66.3

(f), the Ninth Court of Appeals has unreasonably departed from
the accepted and usual standard used in matters of relevancy.
3* Pursuant to the Texas Rules of Appellate Procedure 66.3

(f), the Petitioner calls for this Honorable Court's exercise of
•Ets^great power of supervision to set a Precedant Law concerning

the admissibility of the GPS technology from another county—an
ankle monitor during guilt/innocence phase.

4* Pursuant to the Texas Rules of Appellate Procedure 66.3

(f), the Petitioner calls for this Honorable Court's intervening
power of Supervision to weigh the true facts out that severely

reduced the probative value against the prejudicial effect of the

GPS technology from another county—an ankle monitor during

guilt/innocence phase.of Petitioner's trial.

LONGORIA V. STATE FATTEIT
 QUESTIONS FOR REVIEW

1* Allowing GPS technology by another county (showing Peti
tioner being on the leg monitor during guilt/innocence), and
serving as evidence of character confornity, rather than proving

consciousness of guilt or flight of the crime. Should there be

a stadning authority(-ies) concerning the admissibility of the
GPS leg monitoring? See RR4, 177-184; RR5, 50-67.

2« Acknowledging the fact that the Ninth Court of Appeals

held the GPS technology was relevant to the Petitioner's case;
did the Ninth Court of Appeals unreasonably depart from the ac

cepted and usual standard of revalancy, when it failed to Acknow

ledge whether the GPS technology was either more probable or less

probable than it would be without the evidence? See RR4, 177-

184; RR5, 50-67.

3* Calling for this Honorable Court of Criminal Appeals'
power of supervision, was the Ninth Court of Appeals' decision of
the probative value of the evidence not being substantially out
weighed by the danger of unfair prejudice unreasonably harmful to
Petitioner; when the Ninth Court of Appeals blantently egnored
other facts (admitted by the State) that severely reduced the ~::~
probative value of the GPS system? See RR4, and RR5 generally.
3b*0Does this Conflict with this Honorable Court of Criminal

Appeals' decisions.on the same fact issue? See RR4, 177-184; RR5,

50-67.

LONGORIA V. STATE PAGE xi
 COMPENDIOUS ARGUMENT

QUESTION NUMBER ONE

Allowing GPS technology by another county (showing Peti
tioner being on the leg monitor during guilt/innocence), and
serving as evidence of character conformity, rather than proving

consciousness of guilt or flight of the crime. Should there be

a standing authority(-ies) concerning the admissibility of the
GPS leg monitoring? See RR4, 177-184; RR5, 50-67.

At the time of the shooting, Petitioner is on bond of Ft.

Bend County for aggravated assualt. RR4, 164. As a condition of

that bond, Petitioner is required to wear a GPS tracking device.

RR4, 164. Petitioner becomes separated from the GPS tracking

device at approximately 10:49P.M. on May 13, 2012, in Waller 3r

County, Texas. RR5, 66. Petitioner is arrested in this cause on

July 7, 2012. RR4, 156.

At trial, the Court allows GPS evidence informing the jury

that Petitioner is being tracked by another county, prior .to the

shooting in this cause, using a GPS device. RR4, 177-184; RR5, 50
67. Petitioner's counsel objects to the prejudicial nature of •':.'..

the evidence. RR4, 165, 176. Further, the court allows a video

relating to the GPS monitoring into.evidence. RR4, 167. This
video shows the following words at the bottom of the screen: :::

zone, tamper, battery, strap, motion, GPS. RR4, 167. Petitioner's
Counsel objects to the prejudicial nature of the words at the
bottom of the GPS video. RR4, 169, 172, 176. Petitioner's Coun

sel suggests a means of showing the evidence without the objec-

LONGORIA V. STATE PAGE 1
 COMPENDIOUS ARGUMENT

tionable words. RR4, 173.

The Petitioner has conducted a thorough research concerning

any caselaw(s) that deals with GPS technology. The Petitioner
found, but not limited to, the following:

In Texas, there are many circumstances wherein tracking a

defendant's movement is allowed as evidence in the guilt/inno^e "

cence phase of a trial. See Brown v. State, 163 S.W.3d 818 (Tex.
App.--Dallas, 2005, pet. ref'd)(employer tracks work truck de
fendant drives with GPS system); Wilson v. State, 195 S.W.3d 193
(Tex.App.--San Antonio 2006, no pet.)(Sprint employee testifies
as to the location of defendant's cell phone using tracking tech

niques); Robinson v.-State, 368 S.W.3d 588 (Tex.App.--Austin 2012
pet. ref'd)(deputy testifies as to the location of defendant's
cell phone using tracking techniques), Dixon v. State, No.01-11-
00443-CR (Tex.App.--Houston [1st dist] June 28, 2012, Pet. ref'd)
(Mem.op., notdesignated for publication)(tracking of officer's
patrol vehicle using GPS technology allowed as evidence), Saenz
v. State, No. 13-10-00216-CR (Tex.App.--Corpus Christi Febraury
17, 2011) (mem.op. Not designated for publication) (Detective test-1
ifies as to the location of defendant's cell phone during a •?".:.

shooting using tracking tracking technology).
What is the sole purpose of presenting the above cases to

this Honorable Court? Axiomly, none of these cases•involve a

defendant being tracked by a county with a GPS ankle monitor at
the time of the offense! Truly, Petitioner's counsel (including

LONGORIA V. STATE PAGE 2
 COMPENDIOUS ARGUMENT

Petitioner) found no case(s), in Texas, in which evidence that a

defendant is being tracked via GPS technology by another county

is allowed in front of a jury during the guilt/innocence phase

of a trial. See Appellant's brief filed on July 30th 2013.

Therefore, the Petitinoer believes (pursuant to rule 66.3(f))
that there should be a standing authority on this very fact issue

The benifit of a Precedent will not only instruct the courts on

how to proceed, but to provide guidance to them when it comes to

dealing with GPS ankle monitor's during guilt/inncence. Is it

admissible or is it not admissible? The Petitioner stands with

confidence that the following two questions will show how this

GPS monitoring is not admissible, and how it can be prejudicial

to one's case. Nevertheless, the Petitioner will not limit this

Honorable Court's analysis to make a new and sole precedent on

this very issue.

Finally, this Honorable Corut should grant this Petition to

make new and governing authority on the issue of presenting GPS

tracking device (ankle monitoring) from another county being eit
her admissible or not admissible during the guilt/innocence phase

QUESTION NUMBER TWO

Acknowledging the fact that the Ninth Court of Appeals held

the GPS technology was relevant to the Petitioner's case; did the
Ninth Corut of Appeals unreasonably depart from the accepted and

usual standard of relevancy, when it failed to acknowledge whet-

LBNGORIA V. STATE PAGE 3
COM COMPENDIOUS ARGUMENT

her the GPS technology was either more probable or less probable
than it would be without the evidence? See RR4, 177-184; RR5, 50-
67.

This Honorable Court of Criminal Appeals.:in Montgomery v.

State [810 S.W.2d 372, 391 (Tex.Crim.App. 1990)], instructed that
the trial court must rely in large part upon its own observa
tions and experiences of the world, and reason from there in de-.:

ciding whether proffered evidence has "any tendency to make the

existance of any fact of consequence to make the determination of

the action more probable or less probable than it would be with

out the evidence." Rule 401, Supra. The determination of rele

vance, vel non, thus depends upon one judge's perception of com

mon expericance. See Weinstein & Berger, Supra, U 401[0l], at
401-10. The process cannot be wholly in common expercience a

perticular inference is available. Where there is room for such

disagreement, an appellate court that reverses a trial court's

ruling on relevancy accomplishes nothing more than to substitute

its own reasonable perception of common experience for that of

the trial court. ... where the appellate court can say with con-r

findence that by no reasonable perception of common exprerience

can it be concluded that proffered evidence has a fact of conse

quence more or less probable than it would otherwise be, then it

canbe said the trial court abused its discretion to admit that

evidence.

The focus here is the relevancy of the GPS technology from

LONGORIA V. STATE PAGE 4
 COMPENDIOUS ARGUMENT

another county. Relevant evidence is evidence that has a ten

dency to make the existence of a fact that is of consequence to
the determination of the action more probable or less probable
than it would be without the evidence. This definition includes

two main components. First, the evidence must be material, i.e.,
that the proposition for which the evidence is offered must be

of consequence tothe determination of the case. Second, the evi
dence must be probative, i.e., it must make the existance of the

fact more probable or less probable than it would be without the
evidence. Ladner v. State, 868 S.W.2d 417, 422-23 (Tex.App.--
Tyler, 1993).

The Ninth Court of Appeals held the GPS evidence is rele

vant to material issues in the case, such as the perpetrator's

identity, his flight, and his consciousness of guilt, becuase :.:.:.

this evidence establishes Longoria's movements (both before and
after the murder), as well as the timing of his removal of the -
GPS device. Accordingly, the trial court did not commit error

in allowing the GPS evidence into the record because it was

admissible for purposes other than character conformity under

Rule 404(b). We overrule issue one. See Appendix A *8.

The Petitioner questions the Ninth Court of Appeals' deci

sion because the Ninth Court of Appeals never completed, or

acknowledged, the second main component of the Relevancy Test.

Within the first main component, while it is true, the Ninth

Court of Appeals satified the first prongsbecuase the GPS tech-
rif1-,... —======== _====
LONGORIA V. STATE PAGE 5
 COMPENDIOUS ARGUMENT

nology can be to Petitioner's case. See Tennison v. State, 969

S.W.2d 578, 580 (Tex.App.--Texarkana, 1998); Appendix A *8.
However, there can be no logical or legal reason for failing to

uphold, and decide, the well known second main, component of this

Relevancy Test.

The trial judge understood the Prejudicial nature of the

evidence when she allows it as evidence of consciousness of guilt

and flight after the crime. RR4, 171. In addition to this, there
is an abundance of other evidence that shows the Petitioner's

movement before and after the crime.

Raqwel Nazario, the decedent's daughter, places Petitioner a
at the park (RR3, 47) and a'to her father's house vat:the time of :
the shooting. RR3, 67. Marissa Saucedo, the deceased's niece,
places Petitioner at the park. RR4, 28. Roger Keys, a caretaker

at the park, places Petitioner at the park. RR4, 84. Marty Joe
Mclnnis, Peititioner's girlfriend's father, places Petitioner at
the park. RR4, 119. Detective Paul Hahs places Petitioner at the
park and the scene fo the shooting by use of a video in conjunc
tion with eyewitness interviews. RR5 , 36-41. Imagin Mclnnis,
Petitioner girlfriend's daughter, places Petitioner at the park,
RR5, 207, and at the hose at the time of the shooting. RR5, 224-
230. Raymundo Zarate, III, the deceased's son, places Petitioner
at the park, RR6, 11, and at the house at the time of the shoots
ing. RR6, 28. Axiomly the Petitioner does not even contest his
movements on the day of the crime, nor does he contest the fact

LONGORIA V. STATE PAGE 6
 COMPENDIOUS ARGUMENT

of Petitioner being at the park, nor at the decease's house!

The question here is: "Does the GPS technology (being a leg
monitor from another county) increase one's knowledge and enhance

the likelihood of showing that the Petitioner was at the park, or

at the decease's house, when compared-to the abundance of other

evidence proving the same given facts?" No! It does hot increase

the likelihood of ascetaining the truth about this given fact.

Ladner, 868 S.W.2d at 422-23. Truly, the probative value of this

evidence was highly decreased because of the abundance of other

evidence that shows the Petitioner's movement before and after

the crime. See Tennison, 969 S.W.2d at 580.

Even though the Texas rules of Evidence 404(b) allows for
eivdence of character conformity to be presented (in front of the
jury) to show flight of the crime. Is their any relevency in the
probative value of the GPS technology from another county, when

their is a great amount of evidence that already shows that Peti

tioner had fled from the scene? See Tex.R.App.Proc., 404(b).

Imagin Mclnnis, Petitioner'sfgiflfriend's'duaghter, testi
fies about Petitioner's location throughout the day fo the murder

and in flight away from the murder. RR5, 207-237. Imagin testis '

fies that Petitioner "ordered occupants of the car to throw out

their phones. RR5, 231. The only reasonable inference from this *.

is that Petitioner knows that phones can be tracked with GPS -?:„r..

technology. Thus, if the State introduced this GPS technology, it
would be admissible under the Texas law, further proving Peti^:.-

LONGORIA V. STATE PAGE 7
 COMPENDIOUS ARGUMENT

tioner's guilty state of mind, and the evidence of flight from
the scene. Furthermore, detective Paul Hahs testifies exten

sively on the attempts to locate Petitioner after the murder. RR5

41-90.

Very little of this evidence has anything to do with the GPS

monitoring. Therefore, is there any probative value of the GPS

monitoring to proof flight of the crime? Very little! The GPS

tracking only confirms what Imagin tells the officers, and what

the officers told the jury. RR5, 67. It would have been simple :

for the state to say where they recovered property that could

have been used to track and apprehend Petitioner if Petitioner

had not discarded it. It would also have been very simple for

the State to argue that a reasonable inference is that Petitioner

is in flight at the time he discards the items that could have
been used to track him, such as the cell phones.

Finally, the important question that Petitioner inquires

from this Honorable Court of Criminal Appeals is: "Is the GPS
technology of another county (being a leg monitor in connection
to the Aggravated Assualt charge) more probable than it would be
without the evidence?" No! If this Honorable Court set aside this

GPS monitoring evidence, as the Petitioner has shown, this Honor
able Court will be able to concluded with confidence that the ;-.v

jury would have still been able to place the Petitioner at the
scene, at the park, during Petitioner's flight of the crime, and
simply all of the movements of the Petitioner concerning this

LONGORIA V. STATE PAGE 8
 COMPENDIOUS ARGUMENT

criminal offense. Therefore, this Honorable Court can also con

clude with confidence that the Ninth Court of Appeals' decision

is erroneous and in conflict with other precedent law. Further,

the Petitioner believes, with confidence and respect, that this

Honorable Corut should grant this Petition for further review.

See TexR.App.Proc., 66.3(a), (f).

QUESTION NUMBER THREE

Calling for this Honorable Court of Criminal Appeals' power
of supervision, was the Ninth Court of Appeals' decision of the
probative value of the evidence not being substantially outweighs
ed by the danger of unfair prejudice unreasonably harmful to Pet
itioner; when the Ninth Court of Appeals blantently egnored other

facts (admitted by the State) that ;:severelyr ;reduced the probative
value of the GPS system? See RR4, and RR5, generally.

Part B: Does this Conflict with this Honorable Corut of

Criminal Appeals' decisions on the dame fact issue? See RR4, 177-
184; RR5, 50-67.

The Ninth Court of Appeals held the probative value of the

GPS evidence (showing Longoria's movements and actions immedi
ately before, duringy and after the commission of the crime) was
significant, because this evidence was relevant to establishing
the identity element of the crime. In establishing Longoria's
flight after the murder, the GPS evidence demonstrated his con
sciousness of guilt, and tended to rebut the defendant's mis-
identification theory defense developed by the defendant during
LONGORIA V. STATE PAGE 9
 COMPENDIOUS ARGUMENT

the cross-examination of one of the State's witnesses and during
the defendant's closing argument. See Appendix A '''9.

However, It has well been settled that in assessing the pro

bative value of evidence, an appellate court must look to the
strength fo the proponent's other evidence and the need the pro
ponent has for the evidence in question. See Bigby v. State, 892

S.W.2d 864, 883 (Tex.Crim.App. 1994). The Petitioner assures this

Honorable Corut of Criminal Appeals that, "Probative value'-', :;:.;.«.
means more than simply relevance. Gilgliobianco v. State, 210

S.W.3d 637, 641 (Tex.Crim.App. 2006)(citing old chief v. U.S.,
519 U.S. 172, 184, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)). Re:he.
Rather, the "Probative value" refers to the inherent pro

bative force of an item of evidence—that is, how strongly it

serves to make more or less probable the existance of a fact of

consequence to the liligation—coupled with the proponent's need

forrthat item of evidence. We explained in Mongomery v. State,

810 S.W.2d 372, 390 (Tex.Crim.App. 1990)(op. on reh'g), that ">;
"[w]hen the proponent [of an item of evidence] has other compel
ling or undisputed evidence'•."•to establish the proposition or fact

that the [item of evidence] goes to prove, the [probative value
of the item of- evidence] will weigh far less than it otherwise
might in the probative-versus-prejudicial balance." Id.

Considering the over whelming facts presented in the Peti

tioner's petition herein, and other and same compelling and un
disputed facts completely diminished the probative value of the

LONGORIA V. STATE PAGE 10
 COMPENDIOUS ARGUMENT

GPS monitoring from other county. Further, the Ninth Court of
Appeals' decision was misplaced when it came to the use of Peti
tioner's misidentification. No where in the record did the State

(or the trial judge) offer or allow the GPS monitoring from anot
her county for the use of identification. The trial jduge solely
allowed the GPS monitoring in to establish "the consciousness of
guilt and flight after the crime." RR4, 171. In other words, the
GPS monitor was stricken .down to the movements of the petitioner

at the time of the offense. RR4, 171-184.

Again, the Ninth Court of Appeals is not at liberty to blan-
tantly egnore this Honorable Court's decision made in GigliobiT.:.-.
anco. then push it to the side and hold that'"Longoria failed to
preserve the 'cumulative evidence' argument for appeal. See Ap
pendix A *5; compare Appendix A *9. Just to egnore the other
evidence that wieghs against the probative value of the GPS mon
itoring. Furthermore, this is in complete condiction to this
Honorable Court's "probative value" definiation because the focus
is on the "other compelling or undisputed evidence to establish"
the weight of the probative force. See Gigliobianco v. State, 210
S.W.3d 637, 641 (Tex.Crim.App. 2006); compare* Appendix A *5,9.
Finally-and clearly, the probative force of the GPS monitor
ing is very little to none, when-objectively viewing the abund
ance of the other evidence that is undisputed, on the same pur-cs
pose. Just as this Honorable Court states: "probative value
refers to the inherent probative force of an item of Evidence—

LONGORIA V. STATE PAGE 11
 COMPENDIOUS ARGUMENT

that is, how strongly it serves to make more or less probalbe the

existance of a fact of consequence to the litigation—coupled •:.:

with the proponent's need for that item of evidence." Giglio-

biance, 210 S.W.3d at 641. Therefore, this very situation is

deserving of this Honorable Court's attention to grant this

Petitioner for discretionary review. See Tex.R.App.Proc. 66.3(a),

ill-
In regards to the unfair prejudice, the Petitioner presence

the following, but not limited to, as shown:

The Ninth Court of Appeals ultimately decided: "It was with

in the zome of reasonable disagreement for the trial court to :::.!.

find that the probative value of the evidence was not substan^

tially outweighted by the;danger of unfair prejudice." Appendix
A -V9-10.

Harm. Is there any harm that was done in the admission of

the GPS monitoring? The Petitioner believes that the answer that

this Honorable Court can greatly c-o-ncornor is yes—there is egre

gious harm. First, the GPS monitor has very little probative

value as explained. Second, there is an irrational impression

on the GPS monitoring evidence because the monitor naturally

gives a false impression that the Petitioner committed another

murder, or an extremely aweful cirme of soem sort. Although the

trial judge did not allow the charge of the crime to be exposed

to the jury, there is no record of the judge limiting the jury to

not consider why the Petitioner was on the monitor, and stricken

their consideration down to only Petitioner's movement at the
LONGORIA V. STATE PAGE 12
 COMPENDIOUS ARGUMENT

tiMe' of the offense.

Third, the State took a large amount of the trial to intro

duce and present the GPS evidence. Given the large amount of '::'.?.

time, it is impossible for the jury to not consider the obvious

question: "what idd the accused do to get on the GPS monitor?"

In other words, it took their minds of off—during their deli

beration—who pulled the trigger, when their is evidence that
clearly establishes another person being seen on the secne with

a handgun. And lastly, Is there a need for the GPS evidence?

If this Honorable Court can set the GPS evidence aside, and con

clude that the State established the dame facts irbi'r.f light'and
his movement at the scene) without the GPS evidence; then, there

is no need for the GPS evidence at all.

Axiomly, the unfair prejudice clearly outweighes the proba-^

tive value at hand. Truly, the facts of this case fit into a

righteous reversal at hand.

Finally, to give inference to the facts presented in this 7

petitioner, this Honorable Court can conclude—with confidence—

that the unfair prejudice .substantialy outweighes the probative

value. Therefore, the Ninth Court of Appeals' decision is in
complete contradiction to the well establish case law holdings

on the same fact issue as in this case.

As an: entirety, this petition should be granted, in whole,
or in part, or as this Honorable Court deems fit.

LONGORIA V. STATE PAGE 13
 PRAYER FOR RELIEF

Petitioner prays that this Honorable Court will grant this
petition for further review, or to aquit, or for a new trial.

Daniel Frank Longoria-f Jr .
TDCJ #01851803-Coffield
2661 FM 2054
Tenn.Colony, Tx. 75884
Pro se.

LONGORIA V. STATE PAGE 14
 INMATE DECLARATION

I, Daniel Frank Longoria, Jr., TDCJ #01851803, being incar

cerated in:the TDCJ -CID Coffield unit in Anderson county, Texas,

declares that the foregoing is true and correct under the penalty

of perjury.

Executed this day of September 23, 2015.

Daniel rank
bra Longoria'f Jr
#01851803-Coffield
2661 FM 2054
Tenn.Colony, Tx. 75884
Pro se.

LONGORIA V. STATE PAGE 15
 PROOF OF MAILING

I, Daniel Frank Longoria, Jr., TDCJ #01851803, being incar

cerated in the TDCJ-CID Coffield unit in Anderson county, Texas,

declares that I have placed this Petition for Discretionary

Review into the internal mailing system of the Coffield unit on

September 23, 2015.

This is true and correct under the penalty of perjury.

Executed this day of September 23, 2015.

Daniel FrankLongoria,*^Jr. s '
#01851803-Coffield
2661 FM 2054
Tenn.Colony, Tx. 75884
Pro se.

LONGORIA V. STATE PAGE 16
 PETITION NO. PD-0768-15

IN THE

COURT OF CRIMINAL APPEALS

DANIEL FRANK LONGORIA, Jr PETITIONER

Vs

THE STATE OF TEXAS RESPONDANT

APPENDIX A: THE NINTH COURT OF APPEALS

OPINION AT BEAUMONT IN NO. 09-13-00169-CR

On Appeal from the Ninth Judicial District Court of Appeals at
Beaumont in No. 09-13-00169-Cr from the 221st Judicial District

Court of Montgomery County in No. 12-05-05213-CR.

Daniel Frank Lnogoria, Jr

#01851803-Coffield

2661 FM 2054

Tenn.Colony, Tx. 75884

Pro se.

ORAL ARGUMENT REQUESTED
 In The

Court ofAppeals

Ninth District of Texas at Beaumont

NO. 09-13-00169-CR

DANIEL FRANK LONGORIA JR., Appellant

THE STATE OF TEXAS, Appellee

On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 12-05-05213-CR

MEMORANDUM OPINION

Appellant Daniel Frank Longoria Jr. (Longoria)1 was convicted for the
murder of Raymundo Zarate Jr. (Zarate). On appeal, Longoria raises two issues,

both pertaining to the trial court's admission of certain GPS evidence from an

ankle monitor that he was wearing at the time of the murder. He contends that the

trial court erred because the evidence was inadmissible under Rules 403 and

404(b) of the Texas Rules of Evidence.

'The indictment states "Daniel Frank Longoria, Jr. AKA Daniel Longoria[.]"
1
 We overrule both issues and affirm the judgment.

Background Facts

On or about the evening of May 13, 2012, Zarate was shot and killed in the

front yard of his home. Earlier that day, Zarate was at a local park with his family

when he and another man (later identified as Longoria) got into an argument. The

argument developed after Zarate suggested that Longoria should leave the

basketball court area in the park. Zarate's son testified that Zarate did not want

Longoria near Zarate's family because Longoria was cursing and appeared to be

drunk. Later that evening, Longoria and his girlfriend, his girlfriend's daughter,

and Longoria's son drove to Zarate's residence to continue the argument. Zarate

was shot and killed at his residence.

On the day of the shooting, Longoria was wearing a GPS tracking device

placed on him as a requirement of his bond under a different offense out of Fort

Bend County, Texas. After the shooting, Longoria fled the scene. He removed the

GPS tracking device within two hours of the murder of Zarate. Over a month after

the shooting, the police located Longoria and arrested him for the murder of

Zarate.

During the murder trial, the prosecution sought to introduce evidence from

the GPS device (including the GPS coordinates and mapping, as well as a video

relating to the GPS) to establish that Longoria was at the park, that he was in
2
Zarate's neighborhood after the incident at the park, that he was at the scene at the

time of the shooting, and that he fled from the scene and disconnected his GPS.

Longoria challenged the GPS evidence. Outside the presence of the jury, the trial

court held a hearing specifically relating to the GPS evidence, and Longoria voiced

the following objections:

[Defense Counsel]: And, Judge, I just have two objections for the
record. The first being that any mention of global positioning system
at all in the inference will immediately be from the jury that
something bad has happened, he has another offense, somebody in the
government is watching him for a reason. That is our first objection.
The second objection is any of the documents he brought with
him are not business records.

So my first objection is any mention of GPS obviously would
have the effect of the government is watching him, there has got to be
a reason and it has got to be bad. And, two, to admit these documents
as business records, as far as to admit items that are prepared
purposely and surely for litigation, and not in the regular course of
business.

The trial court overruled the objections and it allowed the admission of evidence

from the GPS tracking device, but it did not allow into evidence any testimony or

evidence regarding the reason for Longoria's having to wear the device.
Issues on Appeal

On appeal, Longoria makes no complaint about whether the documents were
business records. Rather, Longoria argues that the trial court erred in overruling his
objections to the GPS evidence pursuant to Rule 404(b) and Rule 403. See Tex. R.
Evid. 404(b), 403. Specifically, he contends on appeal that the GPS evidence was

inadmissible evidence of other crimes, wrongs, or acts. Further he contends it was

more prejudicial than probative and that it was "cumulative evidence." The State

contends Longoria failed to preserve an objection under either Rule 404(b) or Rule

403. See Tex. R. App. P. 33.1(a).

To preserve error for appellate review, a party's objection generally must be

sufficiently specific so as to "'let the trial judge know what he wants, why he

thinks himself entitled to it, and do so clearly enough for the judge to understand

him at a time when the trial court is in a proper position to do something about it.'"

Malone v. State, 405 S.W.3d 917, 925 (Tex. App.—Beaumont 2013, pet. ref d)

(quoting Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009)). In order

to raise a Rule 403 complaint, the objecting party must make a 403 objection

separate from its Rule 404(b) objection. See Montgomery v. State, 810 S.W.2d 372,

389 (Tex. Crim. App. 1991) (op. on reh'g).

After reviewing the record, we conclude that Longoria preserved a Rule

404(b) objection at trial when he challenged the admission of the evidence on the
grounds that the GPS evidence (a) referred to another offense he allegedly

committed and (b) implied he was being watched for other reasons or because he

was bad.
 As to the Rule 403 objection, the State specifically acknowledged during the

hearing on the admissibility of the GPS evidence that the defendant was objecting

to the "prejudicial nature" of the GPS evidence, and the trial court expressly found

that the probative value of the evidence "outweighs the prejudicial effect, as long

as you limit it to the fact that he had this monitor and here is the data."

Accordingly, an objection regarding the "prejudicial nature" of the GPS under

Rule 403 was before the trial court. Longoria, however, failed to articulate any

objection that the evidence was "a needless presentation of cumulative evidence[,]"

and there is no indication in the record that the trial court made a "cumulative

evidence" ruling. Therefore, we conclude that Longoria failed to preserve the

"cumulative evidence" argument for appeal. See Tex. R. App. P. 33.1

Standard of Review

We review a trial court's decision to admit evidence under Rules 404(b) and

403 for an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343-44

(Tex. Crim. App. 2009). "As long as the trial court's ruling is within the 'zone of

reasonable disagreement,' there is no abuse of discretion, and the trial court's

ruling will be upheld." Id. (quoting Montgomery, 810 S.W.2d at 391). If the trial

court's decision is correct on any theory of law applicable to the case, we will

uphold the decision. De La Paz, 279 S.W.3d at 344.
 Rule 404(b)

On appeal, Longoria argues that the GPS evidence constitutes "character

evidence" or evidence of an "extraneous act" and that it was inadmissible under

Rule 404(b). Longoria contends that the "only true purpose" of the GPS evidence

was "to show the jury that [he] has committed, or is alleged to have committed, a

crime in another county, thereby prejudicing the jury [.]"

Rule 404(b) expressly provides that evidence of other crimes, wrongs, or

acts is not admissible to prove the character of the defendant in order to show he

acted in conformity therewith. Rule 404(b) codifies the common law principle that

a defendant should be tried only for the offense for which he is charged and not for

being a criminal generally. Rogers v. State, 853 S.W.2d 29, 32 n.3 (Tex. Crim.
App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008)
(explaining that the defendant is generally to be tried only for the offense charged,

not for any other crimes).

Extraneous offense evidence, however, may be admissible for other

purposes such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). The

list of examples in Rule 404(b) is nonexhaustive. See Prible v. State, 175 S.W.3d
724, 731 (Tex. Crim. App. 2005). For example, extraneous offense evidence may

be admissible to demonstrate conduct by a defendant that indicates a consciousness
6
of guilt. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no

pet.); see also Urtado v. State, 605 S.W.2d 907, 915 (Tex. Crim. App. 1980)

("Flight is evidence of guilt."). This consciousness-of-guilt evidence may include

evidence of a person's conduct (such as "flight" or destruction of evidence) that

occurs subsequent to the commission of a crime. See Torres, 794 S.W.2d at 598-

600. Such evidence is relevant to prove that the person committed the act with

which he is charged. Id. An extraneous offense may also be admissible to show

identity when identity is at issue in the case, or when the defense cross examines

witnesses or alleges that someone else committed the crime. See Page v. State, 213

S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State, 933 S.W.2d 504, 519

(Tex. Crim. App. 1996). "Whether extraneous offense evidence has relevance apart

from character conformity, as required by Rule 404(b), is a question for the trial

court." Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial

court's Rule 404(b) ruling admitting evidence is generally within the zone of

reasonable disagreement "if there is evidence supporting that an extraneous

transaction is relevant to a material, non-propensity issue." Devoe v. State, 354

S.W.3d 457, 469 (Tex. Crim. App. 2011).

Texas courts utilize a two-step analysis for determining the admissibility of

extraneous offenses or uncharged acts. Rogers, 853 S.W.2d at 32-33. Courts

determine first whether the evidence is relevant to a material issue in the case and
7
second whether the relevant evidence should be admitted as an exception to Rule

404(b). Id. The GPS evidence is relevant to material issues in the case, such as the

perpetrator's identity, his flight, and his consciousness of guilt, because this

evidence establishes Longoria's movements (both before and after the murder), as

well as the timing of his removal of the GPS device. Accordingly, the trial court

did not commit error in allowing the GPS evidence into the record because it was

admissible for purposes other than character conformity under Rule 404(b). We

overrule issue one.

Rule 403

Longoria also argues the GPS evidence was inadmissible under Rule 403.

Rule 403 provides that "[although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. The

Rule 403 balancing factors include, but are not limited to, the following: (1) the

probative value of the evidence; (2) the potential to impress the jury in some

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

the proponent's need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324

(Tex. Crim. App. 2012); Shuffieldv. State, 189 S.W.3d 782, 787 (Tex. Crim. App.

2006). The rules of evidence favor the admission of relevant evidence and carry a
8
presumption that relevant evidence is more probative than prejudicial. Jones v.

State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996).

We conclude that the trial court did not err in its balancing of the Rule 403

factors and in finding that the probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice under Rule 403. The State articulated

a need for the evidence and the GPS evidence occurred close in time to the charged

offense. The probative value of the GPS evidence (showing Longoria's movements

and actions immediately before, during, and after the commission of the crime)

was significant, because this evidence was relevant to establishing the identity

element of the crime. In establishing Longoria's flight after the murder, the GPS

evidence demonstrated his consciousness of guilt, and tended to rebut the

defendant's misidentification theory of defense developed by the defendant during

the cross-examination of one of the State's witnesses and during the defendant's

closing argument. Although the State spent some time during the trial on the
presentation ofthe GPS evidence, the amount oftime was not unreasonable in light
of other evidence presented during the trial as a whole. Furthermore, due to the
nature of the technical details and technology involved, it was not the type of

information that might otherwise cause an inflammatory response. We conclude
the trial court did not abuse its discretion in admitting the GPS evidence in this

case. It was within the zone of reasonable disagreement for the trial court to find
9
that the probative value of the evidence was not substantially outweighed by the

danger of unfair prejudice. Therefore, we overrule issue two.

Having overruled both of appellant's issues, we affirm the judgment of the

trial court.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on April 24, 2014
Opinion Delivered June 25, 2014
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.

10
 IN THE NINTH COURT OF APPEALS

09-13-00169-CR

Daniel Frank Longoria Jr.
v.

The State of Texas

On Appeal from the
221st District Court of Montgomery County, Texas
Trial Cause No. 12-05-05213 CR

JUDGMENT

THE NINTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. IT
IS THEREFORE ORDERED, in accordance with the Court's opinion, that
the judgment of the trial court is affirmed.
Opinion of the Court delivered by Justice Leanne Johnson
June 25, 2014

AFFIRMED

Copies of this judgment and the Court's opinion are certified for
observance.

Carol Anne Harley
Clerk of the Court
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