Aaron Rayshan Wells v. the State of Texas

AFFIRMED and Opinion Filed August 23, 2023

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00855-CR

AARON RAYSHAN WELLS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F19-75986

OPINION
Before Justices Reichek and Goldstein1
Opinion by Justice Reichek
Aaron Rayshan Wells appeals his conviction for capital murder. Bringing six

issues, appellant contends (1) he was not brought to trial timely under the Interstate

Agreed Detainer Act (IADA), (2) the trial court abused its discretion in denying his

motion to suppress evidence obtained through a geofence warrant, (3) the State

failed to show the Google data used as a basis for its expert’s testimony was reliable,

(4) the trial court abused its discretion in denying his motion for continuance, (5) the

1
Justice David Schenck was a member of the original panel, but Justice Schenck is no longer a member
of the Court, and he did not participate in the issuance of this opinion.
evidence was legally insufficient to support his conviction, and (6) the submission

of a jury instruction on conspirator liability constituted harmful error. We affirm the

trial court’s judgment.

Background

We begin with a brief overview of the facts concerning the offense and

investigation. In the early morning hours of June 24, 2018, Nikita Dickerson

engaged in her nightly routine of meeting her boyfriend, Jimmy Giddings, in the

driveway of their house to escort him inside. Giddings was a drug dealer, and

Dickerson brought a gun with her for their protection. Dickerson stated she was not

aware of any particular threats to Giddings, but the neighborhood was unsafe.

On this occasion, as Giddings was getting out of his car, a group of men rushed

toward him from the vicinity of a church across the street. One of the men shot at

Dickerson multiple times, and she sustained non-fatal injuries. As Dickerson

collapsed to the ground, she dropped her gun, which was picked up by the man who

shot her. Security camera recordings show Giddings running into the house and

closing a metal gate in the entryway behind him. The men followed, kicking open

the gate to gain entry. Three men are clearly visible in the recording with the lower

parts of their faces covered. The men entered the house, forcing Dickerson to get up

and walk inside with them at gunpoint. A short time later, a fourth man, later

identified as appellant, ran past the camera into the house.

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 Once in the house, the men demanded money. During the course of the

robbery, Giddings was shot and killed. One of Dickerson’s children, who was in a

bedroom of the house during the offense, called 911. The men fled before police

arrived.

A homicide detective, Jeffrey Loeb, released still pictures of the three men

who could be seen clearly in the security camera footage. A public tip line was

opened to try to identify them. Although the lower portions of the men’s faces were

covered, the pictures showed distinctive tattoos.

When no productive leads were generated by the tip line, Detective Loeb

requested a geofence search warrant to obtain information from Google about

cellular devices located in the area at the time of the offense. Based on the security

camera recording timestamp and footage showing that the men were in the area of

the church immediately before and after the offense, Loeb obtained a warrant to

search Google’s records for information on devices located within a rectangular

geofence encompassing Giddings’s house and the portion of the church directly

across the street between 2:45 a.m. and 3:10 a.m. on June 24. Ultimately, a cellular

phone associated with appellant was identified as being at the scene. Through

appellant’s phone records and a search of social media, police were able to identify

Milton Prentice, Brian Groom, and Kiante Watkins as the other three men involved

in the offense.

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 Appellant was found incarcerated for a different offense in a federal prison in

Tennessee. After being transferred to Dallas County, he was tried for and convicted

of capital murder. This appeal followed.

Analysis

I. IADA

In his first issue, appellant contends the trial court erred in denying his motion

to dismiss under the IADA because the State of Texas failed to bring him to trial

within 180 days after he requested disposition of his case. The IADA is a

congressionally sanctioned compact between the United States and the states that

have adopted it, including Texas. See Kirvin v. State, 394 S.W.3d 550, 555 (Tex.

App.—Dallas 2011, no pet.). The Act outlines a cooperative procedure to be used

when a state is seeking to try a prisoner who is being held in a penal or correctional

institution of another state. See TEX. CODE CRIM. PROC. ANN. art. 51.14. The state

with the untried indictment, information, or complaint must file a detainer with the

institution that is holding the prisoner. State v. Votta, 299 S.W.3d 130, 135 (Tex.

Crim. App. 2009).2 The institution must then promptly inform the prisoner the

detainer has been filed and that he has the right to request final disposition of the

charges made the subject of the detainer. Id. The prisoner may make such a request

2
A detainer is a request that is filed by a criminal justice agency with the institution in which the
prisoner is incarcerated asking that the prisoner be held for the agency, or that the agency be advised when
the prisoner’s release is imminent. Id. at 135, n. 5.
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by giving written notice to the warden of the facility in which he is being held who

is then required to forward the request to the appropriate court and prosecuting

officer. Id. Once the request for final disposition has been received by the court and

prosecuting officer, the prisoner must be brought to trial within 180 days unless a

continuance is granted under the Act. Id.

A continuance granted under the Act must be (1) by a court of competent

jurisdiction, (2) in open court, (3) with the defendant or his counsel present, (4) for

good cause, and (5) be necessary or reasonable. Kirvin, 394 S.W.3d at 556. The

“open court” requirement does not mandate a formal proceeding, but is intended to

prevent ex parte or sua sponte continuances. Id. Where a continuance is agreed to

by both sides, it is deemed to be reasonable, necessary, and granted for good cause.

Id. at 556–57. The defendant’s personal consent to the continuance is not required;

his counsel’s signature is sufficient. Id. at 556. Agreed continuances toll the

statutory period within which the defendant must be tried. Id.

The record in this case shows the State of Texas filed its detainer with the

Tennessee prison and, on April 8, 2020, appellant signed his request for final

disposition. Appellant’s request was received by the trial court on May 8. The State

asserts the district attorney did not receive the disposition request until May 29.

Appellant was transferred to a Dallas County jail on June 30.

On July 15 and August 7, both the district attorney and appellant’s defense

counsel signed agreed requests for continuance, otherwise known as “pass slips,”

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resulting in a trial setting in September. On September 23, the parties filed a joint

motion for continuance stating that, although the IADA required appellant to be tried

within 180 days, the postponement of jury trials due to the pandemic constituted

good cause to continue the trial date in this case. Based on the joint motion, the trial

court reset the trial date to March 1, 2021.

Between February 11, 2021 and April 15, 2021, the district attorney and

defense counsel jointly requested five more continuances resulting in a trial setting

of August 19. On June 25, the court conducted a pre-trial conference at which the

State, appellant, and his counsel appeared. The State announced at the hearing that

it was ready to proceed to trial. Defense counsel, however, stated she had a conflict

and requested the trial be moved to the next available date on the court’s jury

calendar, which was September 21.

Appellant spoke on his own behalf and stated he had two concerns. His first

concern was that he felt there had been a lack of communication between him and

his counsel, resulting in her failure to file motions or “come up with a defense”

despite the fact the case was set for trial. Because of this, appellant requested he be

appointed new counsel. Appellant’s second concern was the delay in his case going

to trial, and he requested the charges against him be dismissed under the IADA.

The trial court denied appellant’s request for new counsel and appellant does

not challenge the denial on appeal or assert he received ineffective assistance. In

response to appellant’s IADA complaint, the court agreed appellant “certainly

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need[ed] to have this case tried.” The court went on to find good cause existed to

extend the trial date to September 21, but cautioned that it would be the final

continuance granted. Jury selection began on September 21, and trial commenced

on September 23.

As stated above, agreed continuances toll the statutory period within which a

defendant must be brought to trial under the IADA. Id. at 557. The record here

shows the State and defense agreed to multiple continuances of the trial date

covering a period of 379 days between July 15, 2020 and August 19, 2021. During

a large portion of this time, jury trials were not being conducted due to the global

pandemic. Defense counsel then requested an additional continuance which tolled

the statutory period for a further 35 days. See id. at 556 (reasonable delays caused

by defense motions toll statutory period). Appellant’s trial commenced 482 days

after his request for disposition was received by the district attorney and 503 days

after his request was received by the trial court. Even assuming the latter date

controls, 414 of the 503 days were tolled, meaning that only 89 days of the 180-day

period ran from the date of the request to the beginning of trial. Appellant’s trial

was, therefore, timely under the IADA. Id. at 558. We resolve appellant’s first issue

against him.

II. Geofence Search

In his second issue, appellant contends the trial court abused its discretion in

refusing to suppress location history data obtained from Google with a geofence

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search warrant. A geofence warrant allows police investigators to search location

history data for compatible mobile devices located within a specified area during a

specified period of time. In re Search Warrant Application for Geofence Location

Data Stored at Google Concerning an Arson Investigation, 497 F. Supp. 3d 345, 351

(N.D. Ill. 2020) (“Arson”). This type of warrant is essentially the reverse of a global

positioning systems (“GPS”) warrant which allows a search of location data

generated by a specific device belonging to a person known or suspected to have

been involved in criminal activity. See In re Search of Info. that is Stored at

Premises Controlled by Google LLC, 579 F. Supp. 3d 62, 69 (D.D.C. 2021) (“D.C.

Google I”). With a geofence warrant, police investigators identify the geographic

area in which criminal activity occurred and seek to identify device users at that

location when the crime was committed. Arson, 497 F. Supp. 3d at 351. Google

calculates the location of a device that has enabled Google location history using

input from cell towers, GPS, and signals from nearby wireless internet networks

(“Wi-Fi”) and Bluetooth beacons. United States v. Rhine, No. 21-0687, 2023 WL

372044, at *17 (D.D.C. Jan. 24, 2023). Because Google location history includes

multiple inputs, it is “considerably more precise than other kinds of location data.”

Id. For each device, Google retains subscriber information which may include the

subscriber’s name, address, telephone number, and other identifiers. Arson, 497 F.

Supp. 3d at 351. Law enforcement officers use a geofence search warrant to seize

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this data using a multi-step process to identify criminal suspects and potential

witnesses to the crime. See D.C. Google I, 579 F. Supp. 3rd at 71–72.

In this case, Detective Loeb submitted a warrant application outlining a three-

step search process. In the first step, Google would be asked to create an anonymized

list of all devices located within the “target location” during the time period of 2:45

a.m. to 3:10 a.m. on June 24, 2018. The application defined the target location using

four latitude and longitude coordinates connected by straight lines and included a

visual reference image of the search area.

As shown, the search area was limited to the house where the offense occurred and

a portion of the church property across the street.

Once the anonymized list was produced, law enforcement would then analyze

the data to identify users who may have witnessed or participated in the offense. For

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those users identified as relevant to the investigation, Google would then provide

additional anonymized location history outside of the target location for a period not

to exceed sixty minutes before and after the last timestamp associated with the device

within the target location. The purpose of this additional information was to

eliminate users who, based on the contextual data, did not appear to fall within the

scope of the warrant. For the accounts determined to be relevant after this narrowing

process, Google would then provide the subscriber information, including the user’s

name and email address.

In addition to the search description, the warrant application included

background information on Google’s location services, discussion of the prevalence

of Google accounts on cellular phones, and a probable cause statement by Loeb. The

probable cause statement laid out the basic facts of the offense. It was noted that

surveillance video obtained from the church showed the suspects gathering in the

parking lot behind one of the church buildings across the street from the victim’s

house just prior to the offense and showed the suspects fleeing immediately

afterwards in a car that was left parked in the lot. Loeb stated it was likely that at

least one of the four suspects had a device on him during the commission of the

offense that had enabled Google location services. He opined that “[i]t is common

practice that home invasion robbery suspects keep an open line with someone

outside of the residence while committing this type of offense to keep an eye out for

responding police officers.” It was also noted that the initial shooting of Dickerson

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occurred outside the house in the front yard, and the police were looking not only

for persons involved in the offense, but also for those who were present at the time

as potential witnesses.

A district judge approved the warrant and, as a result of the initial search,

Google identified three devices in the target location at the time of the offense. Once

the search was expanded, Loeb narrowed the search to a single Google account that

“was determined to belong to a suspect who clearly had involvement in this offense.”

The account belonged to appellant and, with appellant’s name, email address, and

Google account identification number, Loeb obtained a second warrant for

appellant’s Google account information. Appellant does not challenge this second

warrant other than as the “fruit of the poisonous tree.”

Google account records provided in response to the second warrant showed

that appellant had changed his phone number since he created his Google account.

A woman using appellant’s former phone number gave Loeb appellant’s new

number. A warrant was then issued to T-Mobile for appellant’s phone records,

including cell-site location information. The phone records confirmed that appellant

was in the area at the time of the offense. The records also showed the persons with

whom appellant was in communication around the time of the offense. Through

social media, detectives were able to identify Prentice, Groom, and Watkins as the

other three men involved in the offense based on their distinctive tattoos.

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 Prior to trial, appellant moved to suppress the information obtained through

the geofence warrant. Appellant argued the search was an unreasonably broad

invasion of privacy and unsupported by probable cause. The State responded that

appellant did not have a reasonable expectation of privacy in the State’s limited

search of his phone’s location history. The State additionally contended the motion

should be denied because the warrant was valid and, alternatively, suppression of

the evidence was inappropriate under the good faith exception to the exclusionary

rule. The trial court denied appellant’s motion to suppress, and the evidence was

admitted.

On appeal, appellant argues the State’s search pursuant to the geofence

warrant was a violation of the Fourth Amendment’s constitutional guarantee against

unreasonable searches and seizures. See U.S. CONST. amend. IV. The ultimate

measure of the constitutionality of a governmental search is its “reasonableness.”

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). Whether a particular

search is reasonable is judged by balancing its intrusion on the individual’s Fourth

Amendment interests against its promotion of legitimate governmental interests. Id.

at 652–53. Where a search is conducted by law enforcement officials to discover

evidence of criminal wrongdoing, reasonableness generally requires a warrant. Id.

at 653. The United States Supreme Court has determined that, to be compliant with

the Fourth Amendment, a warrant must meet three requirements: (1) it must be

issued by a neutral, disinterested magistrate; (2) it must be supported by probable

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cause that the evidence sought will aid in a “particular apprehension or conviction

for a particular offense”; and (3) it must particularly describe the things to be seized

and the place to be searched. Dalia v. United States, 441 U.S. 238, 255 (1979).

Appellant asserts the State’s geofence warrant in this case failed to meet the second

and third requirements.

The issuance of a warrant is supported by probable cause if, under the totality

of the circumstances set forth in the affidavit before the magistrate, there is a fair

probability that contraband or evidence of a crime will be found in a particular place

at the time the warrant is issued. State v. Jordan, 342 S.W.3d 565, 568–69 (Tex.

Crim. App. 2011). “The magistrate may interpret the affidavit in a non-technical,

common-sense manner, and may draw reasonable inferences from the facts and

circumstances contained within its four corners.” Id. at 569. We give great

deference to the magistrate’s determination of probable cause and, on review, only

ensure the magistrate had a substantial basis for concluding probable cause existed.

Id.

The particularity requirement is related to the probable cause requirement

because it allows the magistrate to determine whether probable cause exists for the

requested search. Bonds v. State, 403 S.W.3d 867, 875 (Tex. Crim. App. 2013).

Among the objectives of requiring particularity with respect to the place to be

searched and things to be seized are: (1) limiting the officer’s discretion by

narrowing the scope of the search, and (2) minimizing the danger of searching the

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person or property of an innocent bystander or property owner. Id. at 874–75.

Primarily, the requirement is “meant to prevent general searches and the seizure of

one thing under a warrant that describes another thing to be seized.” State v. Powell,

306 S.W.3d 761, 765 (Tex. Crim. App. 2010).

Geofence warrants are a relatively new addition to the array of investigative

tools available to law enforcement. Because of this, the amount of case law on this

type of warrant is limited. See Rhine, 2023 WL 372044, at *17. But, while the cases

are not numerous, those that have addressed the constitutional issues raised by

geofence warrants have done so in depth. See e.g. id. at *21–27 (surveying geofence

warrant cases). We find the reasoning in these opinions to be consistent, persuasive,

and instructive on the warrant presented here. See Price v. Super. Ct. of Riverside

Cnty, No. E078954, 2023 WL 4312776, at *11 (Cal. App. 4th July 3, 2023).

The case of Price v. Superior Court of Riverside County has strikingly similar

facts to those presented in this case. In Price, a man was shot on the front porch of

his home in a residential area. Id. at *3. The man’s brother was a witness to the

offense and saw two men flee the scene in opposite directions — one ran north, while

the other got into a vehicle and headed south. Id. Surveillance video from a gas

station nearby showed the same vehicle later heading east on a different street. Id.

at *4.

A detective obtained a warrant seeking location history information from

Google for devices located within a geofence encompassing the front yard of the

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victim’s house, including the front porch area where the shooting occurred, and the

street in front of the house for the lengths of two houses heading north and south.

Id. at *5. Based on the timing of multiple 911 calls received about the offense, the

time period specified for the first stage of the search was from 10:00 p.m. to 10:22

p.m. Id. In his affidavit in support of the warrant, the detective averred that “in his

experience people who plan and commit crimes together use cell phones to

communicate.” Id. at *11.

The first search revealed five devices within the geofence during the twenty-

two-minute time period. Id. at *5. The second stage of the search provided a “more

expanded view” of the location and movements of the five devices and indicated that

two of the devices travelled past the gas station where the suspects’ car was recorded

on video surveillance. Id. at *4–*5. The third stage of the search revealed the

identity of the Google account subscribers for the two devices identified as relevant.

Id. at *5. Additional warrants were then secured to obtain the Google account and

cellular phone records for the suspects. Id.

In its review of the constitutionality of the geofence warrant, the court in Price

concluded the warrant was both supported by probable cause and a “model of

particularity.” Id. at *14. Given the specificity of the geofence and the “indisputable

common knowledge that most people carry cell phones virtually all the time,” the

court reasoned there was at least a “fair probability” that the suspects in the murder

would be identified in the search. Id. at *12. The court went on to state that

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 if a geofence warrant is narrowly tailored, in its initial search
parameters, or geographic scope and time period, to maximize the
probability it will capture only suspects and witnesses, and to minimize
searches of location data and identifying information of individuals for
whom there is no probable cause to believe [they] were suspects or
witnesses (uninvolved individuals), then the discretion afforded to the
executing officer by Google’s multi-step production protocol will be
constitutionally immaterial.

Id. at *13.

The geofence warrant in this case was equally likely to reveal evidence of the

identities of suspects and potential witnesses to the offense, and it was even more

likely than the warrant in Price to exclude uninvolved persons. Like the warrant in

Price, the geofence here encompassed only the area where the suspects were known

to have been at the time of the offense. Also like Price, the area was residential in

nature, made up largely of single family homes, and was not heavily trafficked at the

time. Because the period for the initial search in this case was between 2:45 a.m.

and 3:10 a.m., there was a significantly diminished possibility that anyone

uninvolved would be located in or around the search area, which included only the

victim’s house and a then-closed church building. Additionally, because one of the

shootings took place outside the house, there was a strong possibility that everyone

within the geofence would have witnessed at least part of the offense.

Although it is unclear whether or to what extent the second stage of the

location history search in Price was limited in time, the warrant here limited the

anonymized information produced in the second stage to only location history for a

period of sixty minutes before and after the initial search period, for a maximum
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time of approximately two and one-half hours. This limited time-frame in the early

morning hours of a single day would not provide nearly the “all-encompassing

record” or “intimate window into a person’s life” that concerned the United States

Supreme Court when it addressed the seizure of one hundred and twenty-seven days

of historical cell-site information in Carpenter v. United States, 138 S. Ct. 2206,

2217 (2018).

Appellant acknowledges that the three-step narrowing process used in the

State’s geofence warrant “effectively filtered out the innocent,” but argues the initial

search impermissibly included innocent third parties merely because they were

present in an area where a crime was committed. As we have already established,

however, the warrant in this case, even in its initial stage, was unlikely to identify

persons who were not either a suspect or witness to the offense. Furthermore, a

search is not constitutionally impermissible simply because it may infringe on the

privacy interests of uninvolved third persons. Rhine, 2023 WL 372044, at *26; D.C.,

579 F. Supp. 3d at 84; Arson, 497 F. Supp. 3d at 361. It is sufficient that the warrant

did not have the potential for revealing the personal information of a substantial

number of uninvolved persons. Rhine, 2023 WL 372044, at *26.

Appellant argues that, to demonstrate probable cause for the warrant, the State

was required to provide specific evidence showing the suspects were carrying cell

phones with enabled Google location services and that the phones would contain

evidence of the crime. As multiple courts, including the United States Supreme

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Court, have recognized—cell phones are ubiquitous. See Carpenter, 138 S. Ct. at

2218. Judges are not required to “check their common sense at the door and ignore

the fact that most people compulsively carry cell phones with them all the time.”

United States v. James, 3 F. 4th 1102, 1105 (8th Cir. 2021). Detective Loeb’s

affidavit explained that, in his training and experience, co-conspirators in a home-

invasion robbery use phones to keep an open line with someone outside the

residence. The affidavit further stated that “nearly every cellular phone using the

Android operating system has an associated Google account” and non-Android

devices may also have Google accounts that are used by the company for location-

based services, advertising, and search results. Although it is possible the suspects

were not carrying cell phones with enabled Google location services during the

offense, probable cause is about “fair probabilities,” not near certainties. Id.; see

also Arson, 497 F. Supp. 3d at 355 (“probable cause does not require conclusive

evidence that links a particular place or item to a crime”). As for establishing how

the cell phone would contain evidence of the offense, the affidavit in support of the

warrant made clear that police were seeking the identities of persons who were at

the scene through use of the phone’s location data. See Price, 2023 WL 4312776,

at *11.

Appellant relies heavily on the case of United States v. Chatrie, 590

F.Supp.3rd 901 (E.D. Va. 2022), to argue the State’s geofence warrant was

overbroad. Appellant’s reliance is misplaced. In Chatrie, the court held a geofence

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warrant was impermissibly overbroad because it failed to establish particularized

probable cause to search every Google user within the geofence. Id. at 929. The

geofence at issue encompassed 17.5 acres in a commercial area between the hours

of 4:20 p.m and 5:20 p.m. Id. at 922. The court concluded the warrant was

“completely devoid of any suggestion that all, or even a substantial number of the

individuals searched had participated in or witnessed the crime.” Id. at 929. In

contrast, the geofence warrant before us was as narrowly tailored as possible to

capture only location data for suspects and potential witnesses.

The geofence warrant cases to date can generally be divided into two

categories— those in which the geofence search warrant was found constitutionally

infirm because it was not sufficiently limited as to time and place so as to restrict the

executing officer’s discretion and minimize the danger of searching uninvolved

persons,3 and those in which the warrant satisfied the Fourth Amendment because it

established probable cause to search every person found within the geofence area.4

Based on the analysis above, we conclude the warrant here falls into the second

3
People v. Meza, No. B318310, 2023 WL 5287224, at *11 (Cal. Ct. App. 2023); Chatrie, 590 F. Supp.
3d at 929; In re Search of Info. that is Stored at the Premises Controlled by Google (“Kansas”), 542 F.
Supp. 3d 1153, 1158 (D. Kan. 2021); In re Search of Info. Stored at Premises Controlled by Google
(”Pharma I”), No. 20 M 297, 2020 WL 5491763, at *7 (N.D. Ill. July 8, 2020); In re Search of Info. Stored
at Premises Controlled by Google (“Pharma II”), 481 F. Supp. 3d 730, 756 (N.D. Ill. 2020).
4
Price, 2023 WL 4312776, at *18; In re Search of Info. that is Stored at Premises Controlled by Google
(“Texas”), No. 2:22-mj-01325, 2023 WL 2236493, at *14 (S.D. Tex. Feb. 14, 2023); United States v. Smith,
No. 3:21-cr-107-SA, 2023 WL 1930747, at *10 (N.D. Miss. Feb. 10, 2023) (warrant not overbroad, but
officers failed to follow process set out in warrant); Rhine, 2023 WL 372044, at *32 (warrant not overbroad,
but second warrant used to obtain de-anonymized information); D.C. Google I, 579 F. Supp. 3d at 80–81;
Arson, 497 F. Supp. 3d at 363.
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category. Even when the geofence warrant was found to be invalid, however, courts

have refused to exclude evidence resulting from the search. This is because evidence

obtained in objective good faith reliance upon a warrant that is valid on its face is an

exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 922

(1984); see also TEX. CODE CRIM. PROC. ANN. art. 38.23(b); McClintock v. State,

541 S.W.3d 63, 73 (Tex. Crim. App. 2017). “Given the dearth of authority directly

on point and the novelty of the particular surveillance technique at issue,” courts

have determined evidence obtained through an invalid geofence warrant was

nevertheless admissible because it was not “objectively unreasonable” for officers

to believe the warrant was valid. Meza, 307 Cal. Rptr. 3d at 544; Chatrie, 590 F.

Supp. 3d at 938. Appellant here makes no argument that it was objectively

unreasonable for Detective Loeb to rely on the geofence warrant to obtain his

location history. Accordingly, even if the warrant was invalid, appellant has failed

to show the trial court erred in refusing to grant his motion to suppress.

Because we conclude the warrant at issue satisfies the requirements of the

Fourth Amendment and, alternatively, Detective Loeb’s reliance on the warrant was

objectively reasonable, it is unnecessary for us to address the State’s argument that

appellant had no reasonable expectation of privacy in his location history.5 We

resolve appellant’s second issue against him.

5
We note that no case has been willing to go as far as the State suggests and hold that law enforcement
officers do not need to obtain a warrant before searching Google’s location history data stores. The State

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III. Google Location Data Reliability

In his third issue, appellant contends the trial court abused its discretion in

allowing the State’s mapping expert, Greg Gambrell, to testify about appellant’s

location history based, in part, on the data obtained from Google. Appellant argues

the State failed to show the Google data was reliable. Trial courts are given wide

latitude in their rulings on the reliability of expert testimony. Wilson v. Shanti, 333

S.W.3d 909, 913 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). If there is

evidence supporting the trial court’s decision to admit the challenged evidence, there

is no abuse of discretion and we must defer to that decision. Osbourn v. State, 92

S.W.3d 531, 538 (Tex. Crim. App. 2002).

In a hearing outside the presence of the jury, Gambrell testified he was a

graphic digital multimedia evidence specialist who was certified in call detail

records and geolocation analysis. To receive the certification, Gambrell completed

five years of training through the FBI, the United States Secret Service, and the

National White Collar Crime Center. Gambrell also completed approximately one

cites Sims v. State in which the Texas Court of Criminal Appeals held a defendant did not have a legitimate
expectation of privacy in his physical movements or location as revealed by three hours of real-time
surveillance done by “pinging” his phone. See Sims v. State, 569 S.W.3d 634, 645 (Tex. Crim. App. 2019).
As the U.S. Supreme Court has observed, however, historical location information maintained by a third
party “does not fit neatly under existing precedents.” Carpenter, 138 S. Ct. at 2214. Law enforcement’s
real-time tracking of a known, and potentially dangerous, suspect, and its search of a vault of historical
location data to determine the whereabouts of unknown persons and innocent bystanders, are fundamentally
different things. We share the concern of other courts that “current Fourth Amendment doctrine may be
materially lagging behind technological innovations.” Chatrie, 590 F. Supp. 3d at 925. And we bear in
mind that the central aim of the Framers was “to place obstacles in the way of a too permeating police
surveillance.” Carpenter, 138 S. Ct. at 2214 (quoting United States v. Di Re, 332 U.S. 581, 595 (1948)).
–21–
hundred and twenty hours of training on the use of ZetX software, which creates

illustrations of location histories.

Gambrell testified he input thousands of lines of appellant’s location history

data, obtained from both Google and appellant’s phone service provider, into the

ZetX program to create maps showing appellant’s movements. Gambrell stated the

records he received from Google were certified and ZetX provides a failsafe that

detects if records have been altered. Google additionally provided a business records

affidavit stating that Google servers recorded the data automatically at the time, or

reasonably soon after, it was transmitted by appellant’s device, and the data was kept

in the ordinary course of business. The Google affidavit averred the records it

produced were “a true duplicate of original records that were generated by Google’s

electronic process or system that produces an accurate result” and “[t]he accuracy of

Google’s electronic process and system is regularly verified by Google.”

Gambrell discussed how the Google data was collected using Wi-Fi, GPS, and

cell towers, and he stated the spreadsheets of location data provided by Google

specify which of these sources produced each data point along with its range of

accuracy. According to Gambrell, the range of accuracy is within ten meters for

GPS, within one hundred meters for Wi-Fi, and within miles for cell towers.

Gambrell elaborated on how each of these technologies collects location data from

cellular devices and testified that all three are considered valid sciences accepted

among the scientific community. He further stated Google relies on the accurate

–22–
collection of location information as part of its business model to provide location

services and targeted advertising.

With respect to the specific Google data used in this case, Gambrell testified

he verified its accuracy in several ways. First, he compared the location data

received from Google to the cell-site location data received from appellant’s phone

service provider to determine if there were any conflicting data points. Next, he

looked to other evidence in the case, such as the surveillance videos, to confirm that

it correlated with the Google data. He also looked within the Google data itself for

anomalies or outliers that would indicate it was inaccurate. As a final confirmation,

Gambrell manually validated the accuracy range of the Google data points from the

crime scene using a measuring wheel. At the conclusion of the hearing, the trial

court ruled that Gambrell’s testimony, and the State’s demonstrative evidence

regarding appellant’s movements, were admissible.

Appellant contends that Gambrell’s testimony did not meet the standard of

reliability for expert testimony set out in Kelly v. State, 824 S.W.2d 568, 573 (Tex.

1992).6 For expert testimony to be reliable under Kelly, (1) the underlying scientific

theory must be valid, (2) the technique applying the theory must be valid, and (3)

the technique must have been properly applied on the occasion in question. Id.

6
The State responds that Gambrell’s testimony was not based on hard science, but rather on specialized
technical training and, therefore, the more flexible standard of reliability set forth in Nenno v. State applies.
See Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by State v.
Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). Because we conclude Gambrell’s testimony met the
standards set forth in Kelly, we need not address this argument.
–23–
Whether a particular field of study is legitimate is the type of question that can be

resolved as a general matter so that courts can take judicial notice of the reliability

of the type of evidence at issue. Morris v. State, 361 S.W.3d 649, 655 (Tex. Crim.

App. 2011). Trial courts are not required to “reinvent the scientific wheel in every

trial.” Id.

The evidence the State sought to introduce through Gambrell was maps of

appellant’s movements in the days leading up to, including, and immediately after

the offense. The maps were created using cell-site location data obtained from

appellant’s phone service provider and GPS, Wi-Fi, and cell-site location data

obtained from Google. Appellant challenges only the reliability of the Google

location data.

As the State informed the trial court at the hearing, this Court and many others

have already concluded that maps based solely on cell-site location data, including

specifically ZetX mapping, are sufficiently reliable to be admissible at trial. See

Trevino v. State, No. 05-19-00295-CR, 2020 WL 2537246, at *8 (Tex. App.—Dallas

May 19, 2020, no pet.) (mem op., not designated for publication); Patrick v. State,

No. 05-18-00435-CR, 2018 WL 3968781, at *30 (Tex. App.—Dallas Aug. 20, 2018

no pet.) (mem op., not designated for publication) (citing multiple other cases);

Thompson v. State, 425 S.W.3d 480, 489 (Tex. App.—Houston [1st Dist.] 2012, pet.

ref’d); see also Carpenter, 138 S.Ct at 2216 (cell-site location information provides

a detailed and comprehensive record of a person’s movements); United States v.

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Schaffer, 439 F. App’x. 344, 347 (5th. Cir. 2011) (field of historical cell-site analysis

neither untested nor unestablished). Given that a map based solely on cell-site

location information from appellant’s phone service provider would have been

admissible, appellant fails to explain how a map that combines this same data with

the location data provided by Google is rendered less reliable. Indeed, the

combination of technologies used by both companies makes it significantly more

reliable. See State v. Pierce, 222 A.3d 582, 590 (Del. Super. Ct. 2019) (accuracy of

Google Wi-Fi location data verified by other mechanisms such as GPS).

In addition to gathering location information through cell towers, Google also

mines data from GPS and Wi-Fi routers. GPS in particular is significantly more

precise than cell-site location information and has been found by this Court to be

reliable. See Brown v. State, 163 S.W.3d 818, 824 (Tex. App.—Dallas 2005, pet.

ref’d); see also United States v. Beverly, 943 F.3d 225, 230 n.2 (5th Cir. 2019).

Appellant acknowledges this fact in his argument in support of his second issue.

In State v. Pierce, the Superior Court of Delaware thoroughly analyzed the

reliability of Google’s Wi-Fi location data under the standard set out in Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Daubert standard is

“virtually identical” to the Kelly standard. See Hartman v. State, 946 S.W.2d 60, 62

(Tex. Crim. App. 1997) (en banc). The court in Pierce concluded that Google’s

location data met all the criteria for reliability, including wide acceptance in the

scientific community. Pierce, 222 A.3d. at 591. The fact that Google uses the

–25–
location data for commercial purposes is a recognized indicator of reliability. Id.;

see also Carpenter, 138 S. Ct. at 2217.

In addition to the general reliability of Google’s location data, Gambrell

independently verified the accuracy of the information he was provided in this case.

His verification of the Google location data included corroborating it using

appellant’s cell phone records and other evidence in the case, as well as manually

assessing the accuracy of certain data points using a measuring wheel. This type of

independent corroboration supports the trial court’s finding of reliability. See Alyea

v. State, No. 14-19-00498-CR, 2021 WL 5117972, at *3–5 (Tex. App.—Houston

[14th Dist.] Nov. 4, 2021, pet. ref’d) (mem. op., not designated for publication).

Appellant argues the State offered no evidence to show “Google’s process for

culling and delivering data in response to a warrant or court order.” As observed by

the court in Chatrie, Google is always collecting location data and stores all of the

data it collects in a vast “Sensorvault.” Chatrie, 590 F.Supp.3d at 909. The warrant

served on Google in this case ordered the company to turn over “all location data”

associated with appellant’s Google account for the time period of June 1, 2018 to

June 30, 2018, including GPS, Wi-Fi, or Bluetooth sourced location history data

generated from devices associated with appellant’s Google account, and all data

“collected or maintained by Google Location Services and/or Google Location

History and any stored location data from or derived from GPS, Wi-Fi access points,

cell tower triangulation/trilateration or other measurement” related to appellant’s

–26–
Google account. There is nothing in the record to suggest Google did not turn over

all the information the State requested.

Appellant points to the testimony of his defense expert, Steve Watson,

concerning the unreliability of Google’s data. Most, if not all, of this testimony was

offered by the defense after the trial court had already ruled on the admissibility of

Gambrell’s testimony. Furthermore, Watson acknowledged the accuracy of the

independent technologies relied upon by Google—GPS, Wi-Fi, and cell tower

data—to determine location. Watson’s focus was on the proprietary, and therefore

un-reviewed, algorithm used by Google to combine those inputs to produce the

location determination it uses in its services. The data provided by Google in

response to the warrant did not employ the algorithm, however. It provided only the

raw data points from each of the different sources of location information separately

along with their ranges of accuracy. The ranges of accuracy for each data point were

fully taken into account by Gambrell and explained to the jury.

We conclude the case law concerning the technology at issue, and the

evidence concerning its specific application and reliability in this case, were

sufficient to support the trial court’s decision to admit Gambrell’s testimony.

Accordingly, the trial court did not abuse its discretion and we overrule appellant’s

third issue.

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IV. Motion for Continuance

In his fourth issue, appellant contends “the trial court abused its discretion

when it denied his motion for continuance based, in part, on evidence the State did

not disclose under Brady v. Maryland, 373 U.S. 83 (1963).” He asserts the State

failed to turn over evidence relating to the “culpability” of Dickerson, Giddings’s

girlfriend, and a man whose fingerprint was found on one of the cars at the crime

scene. Appellant argues he “undeniably suffered harm because he could not explore

the viable theory that Dickerson masterminded [Giddings’s] murder.” We review a

trial court’s ruling on a motion for continuance for an abuse of discretion. Cruz v.

State, 565 S.W.3d 379, 381 (Tex. App.—San Antonio 2018, no pet.).

At the hearing on appellant’s motion for a continuance, Jimmy Spurger, an

investigator with the public defender’s office, testified he had uncovered information

about Dickerson after looking into tips received by the Dallas Police Department.

Spurger testified these tips were provided to the defense in July 2020, but he did not

begin investigating them until September 15, 2021, a few days before the hearing.

The first tip stated that Dickerson had Giddings murder her previous husband

“Nathaniel” so she could benefit financially. This person also believed Dickerson

arranged to have Giddings murdered. On the same day, police received a second tip

stating that Dickerson was “in on the robbery” and “she was shot to make it look

good.”

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 Spurger began researching Dickerson and found a relative named Nathan

Williams who was murdered in 2012. A CLEAR report on Williams stated he was

associated with both Dickerson and Giddings and showed him living at the house

where Giddings was killed from September 2016 to January 2018, well after his

death in 2012. A man named Ghiri Johnson was also listed as an “associate” of

Williams and a “relative/associate” of Dickerson and Giddings. A fingerprint of

Johnson’s was found at the scene of Giddings’s murder. Spurger requested a copy

of the file on William’s murder, and the State turned it over the same day.

At the hearing on appellant’s motion, defense counsel stated she wanted to

make it clear she was not accusing the State of hiding anything. Her argument was

only that the State had failed in its obligation to investigate these tips and they

“should have found the Brady.” Counsel asked for additional time to review the file

on Williams’s murder. The trial court denied the motion.

A Brady violation occurs when the State suppresses, willfully or

inadvertently, evidence favorable to the appellant. Harm v. State, 183 S.W.3d 403,

406 (Tex. Crim. App. 2006) (en banc). Brady does not require the State to disclose

exculpatory information that it does not know exists. Id. at 407. Nor does the State

have any duty to seek out such information independently on the defendant’s behalf.

Duncan v. State, No. 05-96-01027-CR, 1997 WL 691438, at *6 (Tex. App.—Dallas

Nov. 6, 1997, pet. ref’d) (not designated for publication); Palmer v. State, 902

S.W.2d 561, 563 (Tex. App.—Houston [1st Dist.] 1995, no pet). If the defendant,

–29–
using reasonable diligence, could have obtained the information about which he

complains, there is no Brady violation. Duncan, 1997 WL 691438, at *6; Westley

v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996).

Here, the record shows the State did not withhold or suppress evidence. The

State simply did not pursue two tips it received. Those tips were timely provided to

the defense. Although the defense was in possession of the tips for more than a year,

it did not begin to investigate them until shortly before trial. We conclude appellant

has failed to show a Brady violation and the trial court did not abuse its discretion in

denying appellant’s motion for a continuance. We resolve appellant’s fourth issue

against him.

V. Accomplice Witness Testimony

Appellant’s fifth issue challenges the sufficiency of the evidence to support

his conviction. Appellant argues he was convicted based on the testimony of Kiante

Watkins, one of the other three men involved in the offense, and the State failed to

submit sufficient evidence to corroborate Watkins’s version of what occurred. To

support a conviction based on the testimony of an accomplice, there must be

corroborating evidence that tends to connect the defendant with the offense. TEX.

CODE CRIM. PROC. ANN. art. 38.14. Corroborating evidence is not enough if it

merely shows the offense was committed. Id. But even apparently insignificant

incriminating circumstances, including confirming a mere detail, may provide

sufficient corroboration. Medrano v. State, 421 S.W.3d 869, 883 (Tex. App.—

–30–
Dallas 2014, pet. ref’d). We look at the facts and circumstances of each case and

consider the combined force of all the non-accomplice evidence that tends to connect

the accused to the offense. Id. While the defendant’s presence at the scene of the

crime is insufficient by itself to corroborate accomplice testimony, proof that the

defendant was at or near the scene, when coupled with other suspicious

circumstances, may be sufficient corroboration to support a conviction. Malone v.

State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008).

The location data generated by appellant’s phone showed he was at

Giddings’s house when Giddings was murdered. It also showed that he visited

Giddings’s neighborhood twenty days before the offense. Giddings’s security

camera recorded four men entering the house. Appellant’s phone records

demonstrate that, in the weeks leading up to and including the day of the offense, he

was communicating with the other three men seen in the security camera footage

when the offense occurred. His phone records also show he made a call from the

church parking lot across from Giddings’s house immediately before Giddings and

Dickerson were attacked. Appellant’s internet search history includes searches for

news about the offense and indicates appellant began reading a Dallas Police

Department blog, including a section on unsolved 2018 homicides, immediately

after the offense was committed.

Watkins testified that all four men arrived and fled from the scene in

appellant’s red Jeep Cherokee. Church surveillance video showed a Jeep Cherokee

–31–
leaving the church parking lot after the offense. The State submitted documentation

into evidence showing appellant purchased a red Jeep Cherokee approximately one

month before the murder. A few days after the offense, appellant was searching

online about how to reset the oil sensor for a Jeep Cherokee, indicating he still owned

the vehicle.

Although appellant attempts to discredit some of this evidence and Watkins’s

testimony in general, it was solely within the province of the jury to weigh the

evidence and evaluate credibility. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.

Crim. App. 1999). We conclude there was sufficient evidence tending to connect

appellant to the offense and to corroborate Watkins’s testimony. See Malone, 253

S.W.3d at 257. We resolve appellant’s fifth issue against him.

VI. Conspiracy Liability Instruction

In his final issue, appellant contends the trial court erred in instructing the jury

on conspirator liability. The challenged instruction, which tracks the language of

section 7.02(b) of the penal code, stated,

If, in the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators, all conspirators
are guilty of the felony actually committed, though having no intent to
commit it, if the offense was committed in furtherance of the unlawful
purpose and was one that should have been anticipated as a result of the
carrying out of the conspiracy.

See TEX. PENAL CODE ANN. § 7.02(b). Appellant argues this instruction allowed the

jury to convict him without finding the specific intent required for the offense. He

further argues the instruction allowed the jury “to convict the non-shooter as a party
–32–
and similarly impose the death penalty” without being required to find the non-

shooter intended to cause the death or that the shooter intended to cause the death.

Appellant is mistaken.

It has long been the law in Texas that a person can be convicted of capital

murder as a party to the offense without having had the intent to commit the murder.

Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011); Johnson v. State,

853 S.W.2d 527, 535 (Tex. Crim. App. 1992). All the State was required to prove

in this case was that (1) appellant conspired with the group to commit robbery,

(2) the murder occurred in furtherance of the robbery, and (3) the murder should

have been anticipated as a result of carrying out the robbery. Martinez, 330 S.W.3d

at 902. The court’s charge properly instructed the jury on these elements.

Contrary to appellant’s suggestion that a finding of guilt based on conspiracy

liability allows a defendant to be sentenced to death without a finding of intent, the

code of criminal procedure requires additional findings before a defendant who was

found guilty as a party to capital murder can be subjected to the death penalty. If a

defendant is found guilty of a capital offense for which the State seeks the death

penalty, the trial court must conduct a separate sentencing proceeding to determine

whether the defendant will be sentenced to death or life in prison without parole.

TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(a). In cases where the jury charge

allowed the jury to find the defendant guilty as a party at the guilt/innocence stage,

the jury must be asked in the separate sentencing proceeding “whether the defendant

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actually caused the death of the deceased or did not actually cause the death of the

deceased but intended to kill the deceased or another or anticipated that human life

would be taken.” Id. § 2(b)(2). Regardless, the State in this case did not seek the

death penalty and, therefore, appellees arguments are unavailing. See Cienfuegos v.

State, 113 S.W.3d 481, 495 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

We conclude the trial court’s charge to the jury on conspiracy liability was

proper. We overrule appellant’s sixth issue.

Based on the foregoing, we affirm the trial court’s judgment.

/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE

Publish
TEX. R. APP. P. 47.2(b)
210855F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

AARON RAYSHAN WELLS, On Appeal from the Criminal District
Appellant Court No. 4, Dallas County, Texas
Trial Court Cause No. F19-75986.
No. 05-21-00855-CR V. Opinion delivered by Justice
Reichek. Justice Goldstein
THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered August 23, 2023

–35–