ACCEPTED
01-14-00527-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/8/2015 3:11:21 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00527-CR
IN THE FIRST COURT OF APPEALS FILED IN -
1st COURT OF--APPEALS ----
OF THE STATE OF TEXAS HOUSTON, - -
--- TEXAS
- - ----ID K ------
3/8/2015- 3:11:21--PM
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---- VO ------
CHRISTOPHER -- A. PRINE
----
----Clerk
FEANYICHI EZEKWESI UVUKANSI
Appellant
v. FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
THE STATE OF TEXAS
3/9/2015 8:49:00 AM
Appellee
CHRISTOPHER A. PRINE
Clerk
On Appeal in Cause Number 1353181
From the 174th District Court of Harris County, Texas
Hon. Frank Price, Judge Presiding
BRIEF FOR APPELLANT
ORAL ARGUMENT REQUESTED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
BOB WICOFF
State Bar of Texas No. 21422700
bob.wicoff@pdo.hctx.net
Attorney for Appellant
JAYME REISLER
Intern-Public Defender’s Office
1201 Franklin, 13th floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
i
Identity of Parties and Counsel
Appellant Feanyichi Ezekwesi Uvukansi
TDCJ # 01939267
Robertson Unit
12071 FM 3522
Abilene, Texas 79601
Presiding Judge Hon. Frank Price
174th District Court
1201 Franklin
19th floor
Houston, Texas 77002
Trial Prosecutor Gretchen Flader
Kyle Watkins
Assistant District Attorneys
Harris County, Texas
1201 Franklin
Houston, Texas 77002
Defense Counsel in Trial Court Vivian King
Attorney at Law
3402 Dowling St., # 206
Houston, Texas 77004
Defense Counsel on Appeal Bob Wicoff
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th floor
Houston, Texas 77002
Jayme Reisler1
Legal Intern
Public Defender’s Office
1201 Franklin, 13th floor
Houston, Texas 77002
1
Ms. Reisler is a third-year student at the University of Houston Law Center and has provided
valuable research assistance in the preparation of this brief.
i
Table of Contents
Page
Identity of Parties and Counsel: i
Table of Contents: ii
Index of Authorities: v
Statement of the Case: ix
Issues Presented: x
Statement of Facts: 1
Summary of the Argument: 8
Issue One: 10
The evidence is legally insufficient to prove that the Appellant is guilty of
capital murder under Tex. Penal Code § 19.03(a)(7)(A), because there is no
evidence which proves that the Appellant intentionally killed Carlos Dorsey
Argument:
A. Standard of review and applicable law 10
B. There was no evidence to prove that the Appellant shot Carlos 12
Dorsey, that he solicited, encouraged, directed, aided or attempted
to aid another person to shoot Carlos Dorsey, or that he had the
specific intent to kill Carlos Dorsey
Issue Two: 17
The trial court committed reversible error in denying the Appellant’s timely
request for a jury instruction on the lesser included offense of felony
murder.
ii
Table of Contents (cont’d.)
Page
Argument:
A. The trial court erred in refusing to submit an instruction on 17
felony murder
B. The trial court’s error resulted in harm 21
Issue Three: 22
The trial court erred in denying the Appellant’s motion to suppress the
warrantless seizure of his cell phone, which resulted in constitutional error that
was not harmless beyond a reasonable doubt
Argument:
A. Statement of Facts from Motion to Suppress Hearing 22
B. General Standards of Review 26
C. Issues presented regarding seizure of Appellant’s cell phone 27
1. Did the officer have a right to enter the apartment of 28
Lela Thomas and Camelia James?
Was entry justified in order to do a “protective sweep?” 28
Were officers given voluntary consent to enter the apartment? 20
2. Even if the officer’s entry into the apartment had been 33
legal, were the police officers authorized to seize the
Appellant’s cell phone?
Were the police authorized to seize the cell phone under the 33
“plain view” doctrine?
iii
Table of Contents (cont’d.)
Page
3. Was seizure of the cell phone justified as being a legal 37
seizure made incident to Appellant’s arrest?
The phone was not a weapon 37
There was no proof of an inventory search 37
Did the Appellant abandon his cell phone? 39
4. “Independent source” and “attenuation of taint” 40
D. The erroneous denial of Appellant’s motion to suppress 45
evidence resulted in constitutional error that resulted in
harm to the Appellant
Issue Four: 48
The trial court erred in overruling defense counsel’s objection to the
prosecutor’s closing argument, which interjected new and harmful facts into
the proceedings through unsworn jury argument, namely, that a witness
who had not testified at trial had given the Appellant’s name as someone
involved in the shooting.
Argument:
A. Statement of Facts 48
B. Error and harm analysis 51
Prayer for Relief: 55
Certificate of Service 56
Certificate of Compliance: 56
iv
Index of Authorities
Cases Page
Acosta v. State, 411 S.W.3d 76 (Tex. App.-Houston [1st Dist.] 2013, no pet.) ................. 52
Allridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991) .............................................30-31
Aviles v. State, No. 01-09-01017-CR, 2011 WL 346436 (Tex.App.-Houston. ................ 18
[1st Dist.] Feb, 3, 2011, pet. ref'd)(mem. op., not designated for publication)
Bedolla v. State, 442 S.W.3d 313 (Tex. Crim. App. 2014).............................................. 19, 21
Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) ...................................................... 17
Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008) ..................................................... 11
Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788 (1968) ........................................... 31
Carmen v. State, 276 S.W.3d 538 (Tex. App.-Houston [1st Dist.] 2008, pet. ref'd) .......... 20
Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034 (1969)..................................................... 37
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2009) ................................................... 11
Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) .................................................... 52
Comer v. State, 754 S.W.2d 656 (Tex. Crim. App. 1986) ..................................................... 39
Cruse v. State, No. 01-13-00077-CR, 2014 WL 3607250 (Tex.App.-Houston. ............... 34
[1st Dist.] July 22, 2014, pet. ref'd)(mem. op., not designated for publication)
Davila v. State, 441 S.W.3d 751 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd)............ 41
Davis v. State, 74 S.W.3d 90 (Tex. App.-Waco 1999, no pet.) ........................................... 30
Ervin v. State, 331 S.W.3d 49 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) ............... 10
Giles v. State, No. 13-06-00570-CR, 2007 WL 2390823 (Tex.App.-Corpus Christi- ... 32
Edinburg August 23, 2007, no pet.)(mem. op., not designated for publication)
v
Index of Authorities (cont'd)
Cases Page
Henry v. State, 263 S.W.3d 151 (Tex. App.-Houston [1st Dist.] 2007, no pet.)................ 21
Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001) ................................................ 45
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)........................................................ 11
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) ................................................ 10, 11
Johnson v. State, 871 S.W.2d 744 (Tex. Crim. App. 1994) ................................................... 42
Keehn v. State, 279 S.W.3d 330 (Tex. Crim. App. 2009)...................................................... 33
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) ..................................................... 10
McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997) ................................................. 39
McKinney v. State, 207 S.W.3d 366 (Tex. Crim. App. 2006) ............................................... 18
Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093 (1990) ....................................................... 29
Mathis v. State, 67 S.W.3d 918 (Tex. Crim. App. 2002) ...................................................... 17
Maxwell v. State, 73 S.W.3d 278 (Tex. Crim. App. 2002) ................................................... 27
Mazuca v. State, 375 S.W.3d 294 (Tex. Crim. App. 2013) .............................................43-44
Miller v. State, 393 S.W.3d 255 (Tex. Crim. App. 2012) ..................................................... 33
Moberg v. State, 810 S.W.2d 190 (Tex. Crim. App. 1991) ..............................................37-38
Monge v. State, 276 S.W.3d 180 (Tex. App.-Houston [14th Dist.] 2009, no pet.) ............. 43
Moskey v. State, 333 S.W.3d 696 (Tex. App.-Houston [1st Dist.] 2010, no pet.) .............. 38
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) ........................................45, 48, 53
Nelson v. State, 405 S.W.3d 113 (Tex. App.-Houston [1st Dist.] 2013, pet. ref'd).......14-15
vi
Index of Authorities (cont'd)
Cases Page
Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417 (1996)............................................................ 30
Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006) ..................................................... 12
Ray v. State, 106 S.W.3d 299 (Tex. App.-Houston [1st Dist.] 2003, no pet.) ................... 22
Reasor v. State, 988 S.W.2d 877 (Tex. App.-San Antonio 1999), ..................................29-30
rev'd on other grounds, 12 S.W.3d 813 (Tex.Crim.App. 2000)
Robalin v. State, 224 S.W.3d 470 (Tex. App.-Houston [1st Dist.] 2007, no pet.) ........21-22
Roberts v. State, 273 S.W.3d 322 (Tex. Crim. App. 2008) ................................ 12, 16, 18, 19
Roth v. State, 917 S.W.2d 292 (Tex. App.-Austin 1995, no pet.) ..................................31-32
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973) ............................................ 30
Segura v. United States, 468 U.S. 796 (1984).....................................................................40-41
Sims v. State, 84 S.W.3d 805 (Tex. App.-Houston [1st Dist.] 2002, no pet.) .................... 42
State v. Dobbs, 323 S.W.3d 184 (Tex. Crim. App. 2010) ..................................................... 33
State v. Ibarra, 953 S.W.2d 242 (Tex. Crim. App. 1997) ..................................................... 30
State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) ....................................................... 26
Segura v. United States, 468 U.S. 796 (1984).....................................................................40-41
United States v. Palmer, 37 F.3d 1080 (5th Cir. 1994), cert. denied, ................................... 53
514 U.S. 1087 (1995)
Washington v. State, 417 S.W.3d 713 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd) .. 18
Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013) ....................................... 40, 41
vii
Index of Authorities (cont'd)
Cases Page
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) ................................................. 17
Williams v. State, 235 S.W.3d 242 (Tex. Crim. App. 2007) ...........................................10-11
Statutes and Rules
United States Constitution, Fourth Amendment ............................................................. 30
Tex. Penal Code Ann., sec. 19.03(a)(7)(A) ................................................................... passim
Tex. Penal Code Ann., sec. 22.05........................................................................................ 17
Tex. R. App. P. 44.2(a) .......................................................................................................... 45
Tex. R. App. P. 44.2(b) ......................................................................................................... 55
Other Authority
George E. Dix & John M. Schmolesky, 41 Texas Practice and Procedure .......................... 43
Sec. 18:29 (3rd ed. 2011)
George E. Dix & John M. Schmolesky, 43 Texas Practice and Procedure ..................... 52-53
Sec. 45:9 (3rd ed. 2011)
viii
STATEMENT OF THE CASE
Feanyichi Ezekwese Uvukansi was indicted in cause number 1353181 for
capital murder, alleged to have occurred on or about June 20, 2012 (C.R. at 27); See
Tex. Penal Code, § 19.03(a)(7)(A)(murder of more than one person during the same
criminal transaction). The case was tried in June of 2014 and a jury found Uvukansi
guilty of capital murder (C.R. at 1091). The trial court sentenced him to life without
parole (10 R.R. at 42; C.R. at 1092). A motion for new trial was filed (C.R. at 1108). A
hearing was held pursuant to the motion and the trial court denied the motion on
September 2, 2014 (C.R. at 1118).
ix
ISSUES PRESENTED
Issue One
The evidence is legally insufficient to prove that the Appellant is guilty of
capital murder under Tex. Penal Code § 19.03(a)(7)(A), because there is
no evidence which proves that the Appellant intentionally killed Carlos
Dorsey
Issue Two
The trial court committed reversible error in denying the Appellant’s
timely request for a jury instruction on the lesser included offense of
felony murder.
Issue Three
The trial court erred in denying the Appellant’s motion to suppress the
warrantless seizure of his cell phone, which resulted in constitutional
error that was not harmless beyond a reasonable doubt.
Issue Four
The trial court erred in overruling defense counsel’s objection to the
prosecutor’s closing argument, which interjected new and harmful facts
into the proceedings through unsworn jury argument, namely, that a
witness who had not testified at trial had given the Appellant’s name as
someone involved in the shooting.
x
STATEMENT OF FACTS
A. Witnesses present at the time of the shooting
After performing at the Blue Room Club on June 20, 2012, Frazier Thompson,
a rap singer who performed under the stage name “Traethatruth,” walked out of the
front entrance of the club. Within seconds, he was shot in the back (7 R.R. at 34-36,
46). He did not see who did the shooting, nor did he see whether anyone else was
shot (7 R.R. at 35).
Oscar Jeresano worked as a valet that night, parking cars for concertgoers who
were attending the show (8 R.R. at 6). The concert began around 9:00 p.m. Jeresano
testified that it was “a pretty hectic night” due to there being live performances at two
of the clubs in the center.
The concert ended shortly after 2:00 a.m. (8 R.R. at 14). As patrons exited the
club, a crowd of as many as 100 people gathered near the front door, some of them
waiting to see Traethatruth exit the club, others congregating at the valet stand, trying
to get their cars (8 R.R. at 16).
As Jeresano was responding to a woman who was trying to retrieve her car, he
heard gunshots (8 R.R. at 18). He turned around to see fire coming from the muzzle
of a gun (8 R.R. at 19-20). He found himself facing the shooter (8 R.R. at 22).
Jeresano explained that he did not run because he “just froze” (8 R.R. at 23). He
described the shooter as having a “determined look” on his face (8 R.R. at 24). The
shooter was moving as he shot, “kind of jumping.” Once Jeresano “unfroze,” he tried
-1-
to hide under a white Challenger that was parked nearby. From his position on the
ground, Jeresano was able to see bodies fall (8 R.R. at 29). He estimated that he heard
approximately 15 shots fired. People in the crowd were screaming and crying (8 R.R.
at 29).
Jeresano saw only one shooter (8 R.R. at 30, 59). He described what he saw as
the shooter “shooting toward the crowd” (8 R.R. at 101). He denied knowing who
shot whom (8 R.R. at 102). Jeresano did not volunteer any information to police at
the scene because he had a pending federal criminal charge of his own, which led him
to assume that they would not trust his account of events (8 R.R. at 32). He explained
to the jury that he had already pled guilty in the federal case, where he was charged
with possession of ten kilos of cocaine, and was awaiting sentencing, where he faced
ten years to life in prison (8 R.R. at 35).
After consulting with his attorney, Jeresano gave a recorded statement to the
police, approximately nine days following the shooting (8 R.R. at 35). When he met
with police to give his statement, Jeresano was shown a photo spread, where he
picked the Appellant as the person whom he believed had been the shooter (8 R.R. at
39). Jeresano also identified the Appellant in open court as being the shooter (8 R.R.
at 39). While viewing the photo spreads shown to him by the police, Jeresano also
recognized the photograph of another man he remembered seeing at the club that
night, but whom he did not see do any shooting (8 R.R. at 42).
-2-
On cross-examination, Jeresano conceded that he only pled guilty in his federal
case on July 12, 2012, after he had witnessed the shooting and after speaking to the
lawyer who represented him in his federal case (8 R.R. at 46). He denied being offered
any benefit in the federal case in exchange for his cooperation, and specifically denied
any awareness that by testifying for the State, he would earn “a 5K.1 reduction under
the federal sentencing guidelines.” (8 R.R. at 48-49). However, despite his claim of
being unaware of any benefit as a result of testifying for the State, Jeresano did admit
that his sentencing (which subjected him to deportation) had repeatedly been reset
pending his testimony in the instant case, and had not yet taken place at the time of
trial in June of 2014 (8 R.R. at 47-48). As for any other benefits that inured to him as a
result of testifying in this case, Jeresano could not recall whether his GPS monitor (a
condition of his pretrial release on the drug possession case) was removed once he
began to cooperate with police as a witness to the shooting (8 R.R. at 50-51).
B. Police responders and investigators
H.P.D. Officer Walter Reyes was dispatched to the scene of the shooting at
3:10 a.m. (7 R.R. at 50). When he arrived, Reyes encountered “a chaotic scene…a
large crowd running around frantic.” (7 R.R. at 56). Three of the shooting victims
were pronounced dead at 3:16 a.m. (7 R.R. at 60).
Officer Woodrow Tompkins of the H.P.D. Crime Scene Unit arrived at the
scene of the shooting about 4:00 a.m. that morning (7 R.R. at 90). Due to the large
-3-
crowd and the possibility that evidence might be tampered with or disturbed,
Tompkins called for two more crime scene unit officers to assist him (7 R.R. at 93-
94). As he was testifying about various items of evidence he recovered from the scene,
Tompkins observed that it was not possible to deduce, from where the shell casings
were recovered, where the shooter had been standing when doing the shooting (7
R.R. at 115). This was because the shooter could have been moving while shooting,
people in the crowd could have kicked the shell casings, and cars driving through the
parking lot could have displaced shell casings or even picked up some of the casings
in the tires’ treads (7 R.R. at 115).
Sergeant John Brooks, a homicide investigator with the Houston Police
Department, testified that during his investigation, Daveon Griffin was developed as a
suspect in the shooting (8 R.R. at 142). On November 8, 2013, Oscar Jeresano
identified Griffin in a photo spread as being someone he remembered being at the
nightclub the night of the shootings, although Jeresano did not identify Griffin as a
shooter (8 R.R. 146, 152). Brooks testified that Oscar Jeresano had told him that there
could have been a second shooter (8 R.R. at 160).
H.P.D. Sergeant Chris Cegielski, who was assigned to the gang murder squad,
was the lead homicide investigator in the case. He was called to the scene of the
shooting about three hours after it happened because one of the deceased
complainants, Coy Thompson (a/k/a/ “Poppa C”) was a member of the Crips. Two
-4-
Crips members, Josh Warren and Dedrick Johnson, had been linked to the murders in
January of 2012 of two members of the Bloods, Trae Bush and Germane Burnett (8
R.R. at 169). Another Blood, DeShawn Jackson, had also been shot but survived.
Jackson identified Crips members Warren and Johnson as the shooters in that earlier
murder. Coy Thompson was thought to be the Crip who had ordered the shooting of
the two Bloods, which Cegielski believed made Coy an obvious target for a Blood
revenge killing (8 R.R. at 170).
In the week immediately following the June 20th shootings, Cegielski
interviewed many potential witnesses but got nowhere. Finally, on June 28th, about
eight days after the shootings, Cegielski met with Dedrick Foster, who named a
suspect (8 R.R. at 198). Cegielski also testified concerning the interviews he had with
Oscar Jeresano. He stated that Jeresano identified the Appellant as one of the
shooters (8 R.R. at 206). Jeresano also identified Dexter Brown (whom Cegielski
believed was another shooter), but Jeresano only recalled Brown as having been
present at the club that night, not as someone he saw shooting (8 R.R. at 207). When
he was interviewed, Dexter Brown initially denied being at the club that night, but
later conceded that he had been (8 R.R. at 212, 217). Cegielski spoke to a prosecutor
who offered to accept charges on Brown, but Cegielski was not ready to do so and
Brown was released.
-5-
Cegielski then testified concerning photographs that were found on the
Appellant’s cellphone. State’s exhibit 56 was a photograph that was taken within an
hour or so after the shooting (8 R.R. at 233). The photograph depicted, among others,
Dexter Brown, Devonte Bennett, and Deveon Griffin (8 R.R. at 233-234). State’s
exhibit 55, another photograph taken about an hour after the shooting, depicted the
Appellant along with those who were shown in State’s exhibit 56 (8 R.R. at 237).
On July 11, 2012, Cegielski learned that Dedrick Foster had been murdered (8
R.R. at 239). The Appellant was in custody at the time (8 R.R. at 239).
Officer Cegielski conceded that his theory that the Appellant was the shooter
was not the only theory in the case. For example, Cegielski had also considered the
possibility that a group called the Bellfort Blood had retaliated against Coy (8 R.R. at
252). Another theory had been that some people from New Orleans had committed
the murders (8 R.R. at 252). Additionally, Coy’s mother had told the police that Coy’s
“baby mama” Jasmine might have had something to do with Coy being killed (8 R.R.
at 254). Cegielski admitted that he did not know whether Coy had obtained a gun that
night, after he had texted a man known as Black Willow, asking him to bring a gun to
the club (8 R.R. at 181-182, 254). Cegielski’s investigation led him to conclude that
Coy had a lot of enemies, and that he robbed people for their cocaine. Cegielski
agreed on cross-examination that the Appellant was not responsible for the murder of
Dedrick Foster (8 R.R. at 261).
-6-
C. Expert testimony
Diana Donley, a criminalist with the Houston Forensic Science Center, testified
as to DNA analysis she conducted on bullet casings recovered from the crime scene
(7 R.R. at 150). She was unable to obtain any full DNA profiles from the shell casings,
and so was unable to match them to any profiles from any of the witnesses,
complainants or the Appellant (7 R.R. at 151-152).
Kimberly Zeller was a firearms examiner with the Houston Forensic Science
Center (7 R.R. at 157). Zeller examined eighteen cartridge casings that were recovered
by the police at the scene of the shooting. From analyzing these cartridge casings,
Zeller concluded the following:
1) All eighteen cartridge casings were ejected from .40 caliber firearms (7 R.R.
at 170, 182);
2) Ten of the cartridge casings came from one .40 caliber weapon, and the
remaining eight came from a second firearm (7 R.R. at 169, 182, 184).
Dr. Roger Milton, Jr., an assistant medical examiner at the Harris County
Institute of Forensic Sciences (9 R.R. at 50), performed autopsies on the three people
who were killed in the incident, with the following findings:
1) Carlos Dorsey died of gunshot wounds. He was shot from a distance of
greater than two feet away. (9 R.R. at 53-62; 11 R.R.: State’s exhibits 60-64).
-7-
No bullet fragments were recovered from Dorsey’s body (11 R.R.: State’s
Exhibit 60, at page 4);
2) Erica Dotson also died of gunshot wounds, also from a distance exceeding
two feet (9 R.R. at 62-74; 11 R.R.: State’s exhibits 66-76). A “large-caliber”
bullet fragment was recovered from one of Dotson’s wounds (11 R.R.:
State’s exhibit 66, at pages 4-5; State’s exhibits 74 and 75);
3) Coy Thompson also died of gunshot wounds (9 R.R. at 75-82; 11 R.R.:
State’s exhibits 79-88). A large-caliber bullet fragment was recovered from
Thompson’s thigh (9 R.R. at 81; 11 R.R.: State’s exhibit 79, at page 4; State’s
exhibit 87).
SUMMARY OF THE ARGUMENT
In Issue One, the Appellant argues that the evidence is legally insufficient to
prove that he is guilty of capital murder under Tex. Penal Code § 19.03(a)(7)(A), the
“multiple-murder” provision of the capital murder statute. Such provision requires
proof that each death relied upon for conviction have been intentional or knowing.
As to complainant Carlos Dorsey, the circumstantial evidence is legally insufficient to
prove an intentional killing of Dorsey, since there is no evidence that the Appellant
himself shot Dorsey, no evidence to prove that the Appellant solicited, encouraged,
directed, aided or attempted to aid another person in shooting Dorsey, there was no
motive to kill Dorsey and no evidence of any specific intent to kill Dorsey. At most,
-8-
the evidence proves an intentional killing of Coy Thompson and the felony murder of
Carlos Dorsey, which is not sufficient to constitute capital murder under Tex. Penal
Code § 19.03(a)(7)(A).
In Issue Two, the Appellant complains of the trial court’s refusal, upon timely
request, to instruct the jury on the lesser-included offense of felony murder, with
deadly conduct as the underlying felony. Felony murder is a lesser-included offense of
capital murder, and the evidence established felony murder as a valid, rational
alternative to the charged offense under these facts.
In Issue Three, the Appellant argues that the trial court abused its discretion in
overruling his motion to suppress the warrantless seizure of his cell phone, which
resulted in the admission of evidence from the phone that was not harmless beyond a
reasonable doubt.
In Issue Four, the Appellant complains of the prosecutor’s closing argument,
which interjected new and extremely prejudicial evidence in front of the jury through
the unsworn comments of the prosecutor. Specifically, despite her repeated
assurances to the court and to defense counsel that she would not introduce such
information in front of the jury, the prosecutor argued at closing, over defense
counsel’s objection, that a witness who had not testified at trial had given the
Appellant’s name as someone involved in the shooting.
-9-
Issue One
The evidence is legally insufficient to prove that the Appellant is guilty of
capital murder under Tex. Penal Code § 19.03(a)(7)(A), because there is
no evidence which proves that the Appellant intentionally killed Carlos
Dorsey
Argument
A. Standard of review and applicable law
A challenge to the legal sufficiency of the evidence is reviewed under the
standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318-20, 99 S. Ct. 2781, 2788-
89 (1979). See Ervin v. State, 331 S.W.3d 49, 52-56 (Tex. App.-Houston [1st Dist.]
2010, pet. ref’d)(citing Brooks v. State, 323 S.W.3d 893, 894-913 (Tex. Crim. App.
2010)). Under the Jackson standard, evidence is insufficient to support a conviction if,
considering all the record evidence in the light most favorable to the verdict, no
rational factfinder could have found that each essential element of the charged offense
was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 317–19, 99 S. Ct. at
2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Evidence is
insufficient under this standard in four circumstances: (1) the record contains no
evidence probative of an element of the offense; (2) the record contains a mere
“modicum” of evidence probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute
the criminal offense charged. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at
2786, 2789 & n.11; Laster, 275 S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750
- 10 -
(Tex. Crim. App. 2007). The sufficiency of the evidence standard gives full play to the
responsibility of the factfinder to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007); see also Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008)
(stating jury is sole judge of credibility of witnesses and weight to give their
testimony). An appellate court presumes that the factfinder resolved any conflicts in
the evidence in favor of the verdict and defers to that resolution, provided that the
resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; see also Clayton, 235
S.W.3d at 778 (reviewing court must “presume that the factfinder resolved the
conflicts in favor of the prosecution and therefore defer to that determination”).
In viewing the record, direct and circumstantial evidence are treated equally;
circumstantial evidence is as probative as direct evidence in establishing the guilt of an
actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton,
235 S.W.3d at 778. In determining the sufficiency of the evidence, a reviewing court
examines “whether the necessary inferences are reasonable based upon the combined
and cumulative force of all the evidence when viewed in the light most favorable to
the verdict.” Id. (quoting Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).
Finally, the “cumulative force” of all the circumstantial evidence can be sufficient for
a jury to find the accused guilty beyond a reasonable doubt, even if every fact does not
- 11 -
“point directly and independently to the guilt of the accused.” See Powell v. State, 194
S.W.3d 503, 507 (Tex. Crim. App. 2006).
Under Tex. Penal Code § 19.03(a)(7)(A):
(a) A person commits an offense if the person commits murder as defined
under Section 19.02(b)(1) and:
(7) The person murders more than one person:
(A) during the same criminal transaction.
In order to convict a person of capital murder under the above multiple-
murder theory, “each death must be intentional or knowing-there must be a discrete
‘specific intent to kill’ as to each death.” Roberts v. State, 273 S.W.3d 322, 330 (Tex.
Crim. App. 2008).
B. There was no evidence to prove that the Appellant shot Carlos Dorsey, that
he solicited, encouraged, directed, aided or attempted to aid another person
to shoot Carlos Dorsey, or that he had the specific intent to kill Carlos
Dorsey.
Considering the evidence in the light most favorable to the verdict, the
following conclusions can be made:
1. The evidence does not establish that the Appellant shot Carlos
Dorsey.
Police found eighteen (18) .40 caliber shell casings at the scene. Ten casings
were fired from one weapon, eight from a second weapon (7 R.R. at 169, 170, 182,
184). DNA testing yielded no results from the casings (7 R.R. at 152). No bullet
fragment was recovered from the body of complainant Carlos Dorsey (11 R.R.: State’s
- 12 -
exhibit 60, at page 4). That is, nothing from the autopsy served to connect the
Appellant to Dorsey’s killing through ballistics evidence.
The only eyewitness to the shooting, Oscar Jeresano, testified that he saw only
one person shooting. He identified that person as the Appellant (8 R.R. at 30, 39, 59).
He did tell Officer Brooks that there could have been a second shooter (8 R.R. at
160). Jeresano only saw the Appellant with one gun (8 R.R. at 23). In any case,
although no one identified a second shooter, or even saw a second shooter, the State’s
theory of the case was that there was clearly a second shooter (10 R.R. at 36). There
was no testimony that the Appellant actually shot anyone, only that he was shooting
into the crowd (8 R.R. at 101-102; 157-160).
2. The evidence does not establish that the Appellant solicited,
encouraged, directed, aided or attempted to aid another person in
shooting Carlos Dorsey.
The State posited several possibilities as to who the second shooter might be,
but no one was ever ultimately identified as the second shooter (8 R.R. at 253).
H.P.D. Sergeant John Brooks testified that Daveon Griffin was “a potential secondary
suspect,” but Oscar Jeresano could only recall seeing Griffin at the nightclub the night
of the incident. He did not identify Griffin as a shooter (8 R.R. at 146). Jeresano also
identified Dexter Brown as having been at the club, but again, did not identify him as
a shooter (8 R.R. at 157, 207-208). Officer Cegielski believed that Brown may have
been one of the other shooters, but he did not say why, nor did he link Brown to the
- 13 -
Appellant. Brown was never charged in the shooting (8 R.R. at 216). Devonte Griffin
was developed as another potential suspect, but again, the record is devoid of any
information as to why he was a suspect, or what relationship there may have been
between him and the Appellant (8 R.R. at 242). A woman named April Campbell told
Officer Cegielski that Kedrick Jones was a potential suspect, but again, there was no
testimony or evidence connecting Jones to the Appellant (8 R.R. at 248-250).
Officer Cegielski conceded that his theory that the Appellant was the shooter
was not the only theory in the case. For example, Cegielski had also considered the
possibility that a group called the Bellfort Blood shot Thompson as retaliation (8 R.R.
at 252). Another theory had been that some people from New Orleans had
committed the murders (8 R.R. at 252). Additionally, Thompson’s mother told the
police that Coy’s “baby mama” Jasmine might have had something to do with Coy
being killed (8 R.R. at 254). Cegielski admitted that he did not know whether Coy had
obtained a gun the night he was killed, after he had texted a man known as Black
Willow, asking him to bring a gun to the club (8 R.R. at 181-182, 254). Cegielski’s
investigation led him to conclude that Coy had a lot of enemies, and that he robbed
people for their cocaine.
3. The evidence does not establish that the Appellant had the specific
intent to kill Carlos Dorsey.
Although motive is not an element of the offense of murder, it is relevant as a
circumstance tending to prove guilt. Nelson v. State, 405 S.W.3d 113, 124 (Tex. App.-
- 14 -
Houston [1st Dist.] 2013, pet. ref’d). Thus, in terms of whether the circumstantial
evidence in this case is sufficient to prove that the Appellant intentionally killed Coy
Thompson, Jeresano’s testimony that the Appellant was the shooter, along with his
testimony that the shooter had “a determined look” as he shot, along with a motive to
kill Coy Thompson (as revenge for his suspected involvement in the earlier killing of
the Appellant’s fellow gang member) all likely suffice to constitute circumstantial
evidence that was legally sufficient to prove that the Appellant intentionally killed Coy
Thompson.
However, absolutely no motive was established to kill Carlos Dorsey, who was
apparently a bystander. If the existence of a motive is relevant as a circumstance
tending to prove the Appellant’s guilt of intentionally killing Coy Thompson, then the
lack of motive should be relevant determining whether there was a specific intent to
kill Carlos Dorsey.
Oscar Jersano testified that the shooter “was moving…he was kind of jumping.
See, he was trying to get to his car and he was kind of jumping” (7 R.R. at 26). As
stated supra, there was no evidence that the Appellant shot Dorsey or that he
encouraged another to do so (as opposed to the other shooter doing so independent
of any involvement with the Appellant). However, even assuming, arguendo, that there
is legally sufficient circumstantial evidence to support the theory that the Appellant
shot Carlos Dorsey, or that another person acting as a party with the Appellant shot
- 15 -
Dorsey, there is still nothing to support an intentional killing of Dorsey under either
theory.
Even assuming the Appellant shot Coy Thompson, or was a party to shooting
Thompson, the evidence only proves that Dorsey was shot due to indiscriminate
shooting into the crowd, not with any intention that Dorsey die. Even in a light most
favorable to the jury’s verdict, the killing of Dorsey was felony murder.
In order to prove that the Appellant was guilty of capital murder under Tex.
Penal Code § 19.03(a)(7)(A), “each death must be intentional or knowing-there must
be a discrete ‘specific intent to kill’ as to each death.” Roberts v. State, 273 S.W.3d 322,
330 (Tex. Crim. App. 2008). Because the circumstantial evidence did not prove that
the Appellant had the specific intent to kill Carlos Dorsey, the evidence fails to prove
that both murders alleged in the indictment were intentional. Thus, this Court should
vacate the judgment of capital murder, reform the judgment to reflect a conviction for
murder, and remand the case to the trial court for a new punishment hearing.
- 16 -
Issue Two
The trial court committed reversible error in denying the
Appellant’s timely request for a jury instruction on the lesser
included offense of felony murder.
Argument
A. The trial court erred in refusing to submit an instruction on felony murder.
Defense counsel requested in writing a jury charge on the lesser-included
offense of felony murder with deadly conduct as the underlying felony. See Tex. Penal
Code Ann. § 22.05 (C.R. at 1074). The trial court denied the request (C.R. at 1076).
The Court of Criminal Appeals has implemented a two-prong test to determine
whether a charge on a lesser-included offense should be given. Mathis v. State, 67
S.W.3d 918, 925 (Tex. Crim. App. 2002). The first step is to determine whether the
offense is a lesser-included offense of the offense charged. Id. The second prong of
the test then requires an evaluation to determine whether some evidence exists that
would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of
the lesser offense. Id. In other words, the evidence must establish the lesser-included
offense as a valid, rational alternative to the charged offense. Wesbrook v. State, 29
S.W.3d 103, 113 (Tex. Crim. App. 2000). Anything more than a scintilla of evidence is
sufficient to entitle a defendant to a lesser charge. Bignall v. State, 887 S.W.2d 21, 23
(Tex. Crim. App. 1994).
- 17 -
The Appellant was charged with capital murder under the multiple-murder
theory provision codified in Tex. Penal Code Ann. § 19.03(a)(7)(A). In order to
convict a person of capital murder under such section, “each death must be
intentional or knowing-there must be a discrete ‘specific intent to kill’ as to each
death.” Roberts v. State, 273 S.W.3d 322, 330 (Tex. Crim. App. 2008). Felony murder is
a lesser-included offense of capital murder. McKinney v. State, 207 S.W.3d 366 (Tex.
Crim. App. 2006).
The question thus becomes whether some evidence exists that would permit a
jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser
offense of murder because either of the two deaths alleged in the indictment were not
caused with the specific intent to kill, but were instead committed “in the course of
and in furtherance of the commission of” felony deadly conduct, specifically,
intentionally or knowingly discharging a firearm at or in the direction of one or more
individuals. Deadly conduct may form the basis of felony murder. See Washington v.
State, 417 S.W.3d 713, 721 (Tex. App.-Houston [14th Dist.] 2013, pet. ref’d); See also
Aviles v. State, No. 01-09-01017-CR, 2011 WL 346436, at *5 (Tex. App.-Houston [1st
Dist.] Feb. 3, 2011, pet. ref’d)(mem. op., not designated for publication).
It is critical to note in this regard that even if only one of the two deaths had
been attributable to felony murder, rather than an intentional murder, then a capital
murder conviction would not have been appropriate. As stated supra, under the
- 18 -
multiple-murder provision of Tex. Penal Code Ann. § 19.03(a)(7)(A), “each death
must be intentional or knowing-there must be a discrete ‘specific intent to kill’ as to
each death.” Roberts v. State, 273 S.W.3d 322, 330 (Tex. Crim. App. 2008). Thus, if the
jury had concluded, for example, that whereas the Appellant, acting alone or as a
party, intended to kill Coy Thompson (whom the Appellant arguably had some
motive to kill), but the jury further believed that Carlos Dorsey was killed by
indiscriminate shooting into the crowd (whether by the Appellant, a co-conspirator or
someone else altogether), with no intent to kill him, then the Appellant would not
have been guilty of capital murder but murder.
Although the requested instruction asks for the lesser-included offense of
felony murder as applied to both complainants (C.R. at 1074), this request was
certainly adequate to alert the trial court that the evidence had raised the issue of
whether one or both complainants had been killed in the course of felony deadly
conduct (i.e., a felony murder) and so an appropriate charge applying felony murder
was being requested. To avoid forfeiture of a complaint on appeal, all a party has to
do is let the trial judge know what he wants and why he thinks he is entitled to it and
do so clearly enough for the judge to understand the request at a time when the trial
court is in a proper position to do something about it. Bedolla v. State, 442 S.W.3d 313,
316 (Tex. Crim. App. 2014)(where defense counsel requested jury instruction on “self-
defense,” such was sufficient to avoid forfeiture of complaint on appeal that trial
- 19 -
court had erred in refusing instruction, despite State’s claim that requested charge was
not specific enough to alert trial court to which type of self-defense charge was being
requested); Carmen v. State, 276 S.W.3d 538, 541 (Tex. App.-Houston [1st Dist.] 2008,
pet. ref’d)(“‘Magic words’ are not required; a complaint will be preserved if the
substance of the complaint is conveyed to the trial judge.”)(quoting Bennett v. State, 235
S.W.3d 241, 243 (Tex.Crim.App.2007)).
Thus, by requesting a charge on felony murder with deadly conduct as the
underlying felony, counsel adequately preserved the complaint raised now, which is
that the evidence certainly raised felony murder, rather than intentional murder, as a
rational alternative to the death of Carlos Dorsey, and a jury instruction allowing the
jury to find the Appellant guilty of the lesser offense of murder, due to evidence
having been raised that there was no “discreet intent to kill” Dorsey, was appropriate.
Jurors were presented evidence of a “a chaotic scene…a large crowd running
around frantic” (7 R.R. at 56), following 18 shots being fired in rapid succession into a
crowd, the only eyewitness admitting that he did not even see the second shooter.
Among other scenarios, a juror would be perfectly rational under the facts of this case
in concluding that the Appellant (or his co-conspirator) specifically intended to kill
Coy Thompson and did so, and then, as he ran away, fired indiscriminately into the
crowd, not intending to kill anyone but killing Dorsey and Dotson. Indeed, Oscar
Jersano testified that the shooter “was moving…he was kind of jumping. See, he was
- 20 -
trying to get to his car and he was kind of jumping” (7 R.R. at 26). The killing of
Dorsey, whom the Appellant had no motive to kill, would be a felony murder in such
instance. Another rational conclusion would be that while the Appellant fled, his co-
conspirator fired indiscriminately into the crowd to cause a distraction and to provide
cover, but without any specific intent to kill Dorsey.
B. The trial court’s error resulted in harm
If the trial court errs in regard to the jury charge in a criminal case, and the
appellant timely objects to that error at trial, as in the instant case, harm is assessed by
conducting an Almanza harm analysis. See Henry v. State, 263 S.W.3d 151, 156 (Tex.
App.-Houston [1st Dist.] 2007, no pet)(“‘Some’ harm in an Almanza analysis means
‘any’ harm; thus, if the charging error causes any actual harm to the appellant, as
opposed to ‘theoretical harm,’ then the error requires a reversal of the judgment of
the trial court.”). In this case, appellant properly objected to the charge and requested
an instruction on the lesser-included offense of felony murder. As stated supra, the
requested charge was certainly sufficient to alert the trial court to what was being
requested. Bedolla v. State, 442 S.W.2d 313, 316 (Tex. Crim. App. 2014).
If the charge error involves the absence of a lesser-included offense
[instruction] that leaves the jury with the sole option to convict the appellant of the
charged offense or to acquit him, some harm exists. Henry, 263 S.W.3d at 156 (citing
Saunders v. State, 913 S.W.2d 564, 572 (Tex. Crim. App. 1995)). Robalin v. State, 224
- 21 -
S.W.3d 470, 477 (Tex. App.-Houston [1st Dist.] 2007, no pet.)(stating same); Ray v.
State, 106 S.W.3d 299, 302-303 (Tex. App.-Houston [1st Dist.] 2003, no pet)(same).
Because the trial court’s error in refusing the requested charge left the jury with
the sole option of convicting the appellant of capital murder or acquitting him, the
error harmed the Appellant and he is entitled to a new trial.
Issue Three
The trial court erred in denying the Appellant’s motion to suppress
the warrantless seizure of his cell phone, which resulted in
constitutional error that was not harmless beyond a reasonable
doubt
Argument
The Appellant filed a pre-trial motion to suppress evidence seized from his cell
phone, complaining that the initial seizure of his phone in a third person’s residence
was done without a warrant and was not incident to his arrest (C.R. at 853). The trial
court held a hearing pursuant to the motion. 2
A. Statement of Facts from Motion to Suppress Hearing
On the afternoon of July 3, 2012, armed with a warrant to arrest the Appellant,
eight police officers surrounded an apartment on Yale Street in Houston (6 R.R. at
21). The officers did not have a search warrant. H.P.D. Sergeant Clint Ponder
2
At the hearing, both H.P.D. Officer Ponder and the prosecutor clarified that although
police officers had initially obtained a warrant or order to “ping” the Appellant’s phone,
meaning they obtained permission to locate his phone (and therefore the Appellant himself)
through GPS tracking, there was no search warrant to seize the phone (6 R.R. at 13, 15)
- 22 -
explained that “We had an arrest warrant. We weren’t looking for evidence, therefore,
there was no need for a search warrant on our part” (6 R.R. at 20).
Ponder, accompanied by several other officers, knocked on the door (6 R.R. at
23). A woman who was later identified as Camelia James opened the door (6 R.R. at
24, 41). As Ponder was showing James a photo of the Appellant, the Appellant called
from upstairs, “Hey, I’m coming down.” (6 R.R. at 25). Without incident, he came
downstairs, where he was frisked, handcuffed and put in a police car (6 R.R. at 28).
Sergeant Ponder, who was the only officer on the scene of the Appellant’s
arrest to testify at the hearing, claimed ignorance as to how police came into
possession of the Appellant’s cell phone (6 R.R. at 32). He denied that the police were
searching for a cell phone (6 R.R. at 38).
Lela Thomas and her two children were also at the residence that day (6 R.R. at
64). Thomas testified that she was upstairs in the tub when the police came (6 R.R. at
62). When she heard them knocking, she got out of the tub, looked downstairs to see
what was happening, and told the Appellant, who was upstairs with her at the time,
that the police were there (6 R.R. at 63).
After the Appellant had gone downstairs and been taken into custody by the
police, Thomas was standing outside with her children when the police approached
and asked her “where’s his stuff at?” (6 R.R. at 64). She led them upstairs and pointed
out the Appellant’s belongings (6 R.R. at 65). According to Thomas, the officer then
- 23 -
specifically asked her where the Appellant’s phone was (6 R.R. at 65). When Ms.
Thomas stated that she did not know where his phone was, the officer looked around
and discovered a phone next to the bed on the floor (6 R.R. 65-66). The officer
picked up the phone and asked if it was the Appellant’s, to which Ms. Thomas
responded that it was (6 R.R. at 66). The officer took the phone.
The State did not provide any witnesses to refute Ms. Thomas’s version of
events. Notably, the State did not provide any testimony from the officer (whose
identity was not even revealed at the hearing) who actually seized the phone as to
whether he seized the phone because he had probable cause to believe that it
contained incriminating information. In any case, the trial court apparently believed
Lela Thomas, stating (prior to making its ruling):
“The testimony from (Thomas). She came off as a credible witness to
me. I cannot see why she might be lying about something. She didn’t
come across that way to me. She said the officers said, where’s his
phone, and she pointed it out and said, there it is. Which I don’t have a
problem with, other than the fact, do you guys have a right to take his
phone at that point? Especially if it’s a non-issue, according to you. Why
would they have a right to pick up the phone?” (6 R.R. at 109).
The Appellant testified at the suppression hearing. He claimed that once in the
squad car, he did ask the officers to bring him a shirt and shoes to wear, which were
contained in a clothing bag in an upstairs room of the apartment. (6 R.R. at 76-77).
However, he specifically denied asking for his cell phone, which was not inside the
clothing bag (6 R.R. at 76-77, 78). He also asked one of the officers, Sergeant Garza,
- 24 -
to call his father and inform him of the arrest, which the officer did on his own cell
phone. (6 R.R. at 77-78). Sergeant Garza and the Appellant then left the scene for the
station. (6 R.R. at 78).
The Appellant claimed that the first time he saw his phone after being arrested
was later, when he was inside the interview room at the homicide division (6 R.R. at
78). He stated that he had not intended that his phone be taken (6 R.R. 77-78).
As was the case with Lela Thomas’s version of what happened upstairs with
the seizure of the cell phone, the State did not provide Sergeant Garza or any other
officers to provide a different version of events. The Appellant’s account was
unrefuted.
In denying the motion to suppress, the trial court found that the Appellant had
not asked the officer to retrieve his phone:
“Mr. Uvukansi was at a location other than where he resided. He
asked the officer, as best I can tell, recovered at least his clothes and
shoes. There was no mention of any phone. So I won’t use that as any
indication that he told the officer to recover his phone, but when they
went to get his property and his cell phone was pointed out by one of
the occupants of the home. At that particular point in time I think they
were authorized to pick up the phone so that nobody can take the phone
and do something with it, but before they could capture anything off the
phone then they would be required to get a warrant, which apparently
they did. So far as recovery of the phone, motion to suppress will be
overruled in that regard.
That’s it. Just give me one more thing to argue about. I do think
they had a right to pick up the phone under the circumstances and not
leave it there for fear that somebody could take the phone and obliterate
what might be on the phone but they had no right to go into the phone
until they got a warrant and they did.” (7 R.R. at 6-7).
- 25 -
As far as the officers having any “fear that somebody could take the phone and
obliterate what might be on the phone,” the possibility that the phone might contain
evidence which could be destroyed was never mentioned by any witness at the
hearing, and certainly was not posited by anyone at the hearing as a reason for seizing
the phone. No one testified that they thought that the cell phone might contain
incriminating evidence.
B. General Standards of Review
An appellate court reviews a trial court’s denial of a motion to suppress under a
bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim.
App. 2010). The trial court’s factual findings are reviewed for an abuse of discretion,
and the trial court’s application of law to the facts is reviewed de novo. Id. When the
trial court does not issue findings of fact, findings that support the trial court’s ruling
are implied if the evidence, viewed in a light most favorable to the ruling, supports
those findings. See State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006).
Almost total deference is given to the trial court’s implied findings, especially those
based on an evaluation of witness credibility and demeanor. Valtierra, 310 S.W.3d at
447. An appellate court should sustain the trial court’s ruling if it is reasonably
supported by the record and is correct on any theory of law applicable to the case. Id.
In cases involving a warrantless seizure of evidence, the federal constitution
requires the State to meet its burden to prove an exception to the search warrant
- 26 -
requirement by a preponderance of the evidence, while the Texas Constitution
requires the State to present clear and convincing evidence. See Maxwell v. State, 73
S.W.3d 278, 281 (Tex. Crim. App. 2002)(consent exception).
C. Issues presented regarding seizure of Appellant’s cell phone
The following issues are raised surrounding the taking of the cell phone:
1) Did the unnamed officer have legal authority to enter the apartment of Lela
Thomas after the Appellant had been arrested and placed in the police squad car?
Specifically, was the entry justified by the need to do a protective sweep of the
premises or pursuant to voluntary consent from Lela Thomas?
2) Even assuming, arguendo, that the officer’s entry into the apartment was legal,
were the police authorized to seize the Appellant’s cell phone? Specifically, was
seizure of the cell phone justified under the plain view doctrine, i.e., that it was
immediately apparent that the cell phone might contain incriminating evidence?
Alternatively, were the police authorized to seize the cell phone as being incident to
the Appellant’s arrest, as part of some caretaking or inventory authority, or because
the phone had been abandoned by the Appellant?
3) Even assuming that the seizure of the phone was illegal, did the fact that the
officers subsequently obtained a warrant to view the phone’s contents cure the initial
illegal seizure? That is, does the independent source doctrine act to allow the contents
of the Appellant’s cell phone into evidence on the basis that there was no causal
- 27 -
connection between the initial warrantless seizure of the phone and the procurement
of the phone’s contents? Finally, does the attenuation doctrine allow evidence of the
cell phone’s contents into evidence?
1. Did the officer have a right to enter the apartment of Lela Thomas and
Camelia James?
The first question is whether the officers even had the right to enter the
apartment. According to Sergeant Ponder, who was the only officer involved in the
arrest to testify at the suppression hearing, he knocked on the apartment door and a
woman who was later identified as Camelia James opened it (6 R.R. at 24, 41). 3 As
Ponder was showing James a photo of the Appellant, the Appellant called from
upstairs, “Hey, I’m coming down.” (6 R.R. at 25). Ponder was at the doorway or just
inside the apartment at this point (6 R.R. at 26). Without incident, the Appellant came
downstairs, where he was frisked, handcuffed and put in a police car (6 R.R. at 28).
Ponder did not conduct a search of the apartment or order anyone else to (6 R.R. at
29). He did not know which police officer went upstairs.
Was entry justified in order to do a “protective sweep?” Ponder noted that
it was “standard procedure” when executing an arrest warrant to “clear the house to
make sure when we’re out in the car filling out the paperwork nobody comes out and
shoots us or anything” (6 R.R. at 29). Ponder testified that as a general proposition,
they sometimes entered a residence after an arrest warrant had been executed (6 R.R.
2 Camelia James and Lela Thomas were roommates (6 R.R. at 41).
- 28 -
at 33), but he testified that he did not know whether officers did such a sweep in this
instance or if the people inside the house voluntarily exited the apartment (6 R.R. at
29-30). Thus, although he posited this rationale for entering the apartment as a
possibility, it remains in the realm of speculation: Ponder had no idea whether that
was the reason for entering the apartment or even if any officers did so.
One exception to the necessity of a search warrant is such a “protective sweep”
performed by police officers. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093,
1094–95 (1990). A “protective sweep” is a “quick and limited search of the premises,
incident to an arrest and conducted to protect the safety of the police officers or
others.” Id. “It is narrowly confined to a cursory visual inspection of those places in
which a person might be hiding.” Id. Incident to arrest, police officers may lawfully,
“as a precautionary matter and without probable cause or suspicion, look in closets
and other spaces immediately adjoining the place of arrest from which an attack could
be immediately launched.” Id. at 334, 110 S.Ct. at 1098.
A protective sweep of the premises cannot justify entry into the apartment in
this case, given the fact that the Appellant was immediately arrested downstairs and
placed in the squad car, and no evidence was adduced at the hearing that an officer on
the scene had an objective, reasonable, and articulable suspicion that there were
persons inside the apartment who posed a danger to them. See Reasor v. State, 988
S.W.2d 877, 882 (Tex. App.-San Antonio 1999), rev’d on other grounds, 12 S.W.3d
- 29 -
813 (Tex. Crim. App. 2000)(officer failed to articulate any facts justifying sweep).
According to Sergeant Ponder, eight armed officers were on the scene (6 R.R. at 22).
As far as persons at the apartment posing a danger to the officers, Ponder admitted
that the woman who answered the door was not even frisked for weapons (6 R.R. at
30). See also, Davis v. State, 74 S.W.3d 90 (Tex. App.-Waco 2002, no pet.)(where
defendant emerged from the kitchen saying, “just take my f_ing ass to jail,” no
protective sweep was justified, where officers voiced no objective, reasonable, and
articulable suspicion that there were persons inside the residence who posed a danger
to them, and an armed officer was watching the other persons present).
Were officers given voluntary consent to enter the apartment? Consent to
search is another well-established exception to the constitutional requirements of both
a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct.
2041, 2043–44, 36 L.Ed.2d 854 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim.
App. 1997). “The Fourth Amendment test for a valid consent to search is that the
consent be voluntary, and ‘[v]oluntariness is a question of fact to be determined from
all the circumstances.’” Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 421, 136
L.Ed.2d 347 (1996) (quoting Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059). In order
to be valid, the consent must “not be coerced, by explicit or implicit means, by
implied threat or covert force.” Schneckloth, 412 U.S. at 228, 93 S.Ct. at 2048; see also
Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991)(“The consent must be
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shown to be positive and unequivocal, and there must not be any duress or coercion”)
(citation omitted). By the same token, consent is not established by “showing no more
than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S.
543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968)(where officer falsely represented
he had a valid search warrant, consent not voluntary).
Sergeant Ponder did not recall whether anyone asked permission to search the
apartment (6 R.R. at 34). The officer who seized the cell phone was never identified
and did not testify, so nothing was established at the hearing as to whether he
obtained consent to enter the apartment from Lela Thomas. However, Thomas did
testify. Regarding the officer’s entry into the apartment after the Appellant had already
been placed in the squad car, Thomas testified that she was standing outside with her
children when the police approached her, asking “where’s his stuff at?” (6 R.R. at 64).
She led them upstairs, pointed out the Appellant’s clothes, and then, upon specifically
being asked if a phone lying nearby belonged to the Appellant, replied that it did (6
R.R. at 64-66).
This does not constitute a voluntary consent to search the apartment. It is
instead mere acquiescence to a claim of lawful authority. In Roth v. State, 917 S.W.2d
292 (Tex. App.-Austin 1995, no pet.), police officers knocked on the front door of an
apartment. Roth answered and opened the door just enough to look outside. One of
the officers asked Roth if another person, a juvenile runaway, was inside. Roth replied
- 31 -
“he’s upstairs” and stepped away from the door. The police followed him upstairs,
where he led them to their suspect. Roth then admitted that drugs lying in plain view
inside the apartment belonged to him. Both the police officer and Roth agreed at the
suppression hearing that there was no request to enter the apartment or to search, nor
was there an invitation to enter. Id., at 300. Likewise, in the instant case, the only
account of how the officers entered the apartment came from Lela Thomas, who
testified that she led the police upstairs after they approached her, asking “where’s his
stuff at?” (6 R.R. at 64). Holding that the consent to enter the apartment had not been
shown to have been freely and voluntarily given under the circumstances in Roth, the
Austin Court of Appeals reversed the trial court’s denial of Roth’s motion to
suppress. Id. at 300. Likewise, the State failed to prove that Lela Thomas’s consent, if
any can be said to have been given, was voluntary in this case, rather than being a
mere acquiescence to the officer’s apparent authority to go upstairs.
This case is also very similar to Giles v. State, No. 13-06-00570-CR, 2007 WL
2390823 (Tex. App.-Corpus Christi-Edinburg August 23, 2007, no pet.)(mem. op.,
not designated for publication).4 In Giles, a witness called police to report a suspected
drunken driver. The driver had apparently driven home and gone inside her house.
Police arrived to find the suspect’s boyfriend outside the house. They told the
4
Although Giles is an unpublished opinion and so does not have precedential value, the reasoning of
the Corpus Christi Court of Appeals is instructive in this case, as the facts are very similar to those
presented here.
- 32 -
boyfriend that they were conducting a criminal investigation and that they wanted to
speak to his girlfriend. The boyfriend walked inside with the two police officers
following him. The officers did not ask for permission to enter the home. The Corpus
Christi Court of Appeals held that “under these facts, we conclude that the trial court
erred in finding that consent had been given to enter the residence,” reasoning that
the boyfriend’s action constituted “mere acquiescence to the officers’ entry into the
residence.” Id., at * 5.
2) Even if the officer’s entry into the apartment had been legal, were the
police authorized to seize the Appellant’s cell phone?
Were the police authorized to seize the cell phone under the “plain view”
doctrine? The “plain view” doctrine is an exception to the warrant requirement. See
Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). It allows an officer to seize
an item during a warrantless search if: (1) the officer sees an item in plain view at a
vantage point where he has the right to be; and (2) it is immediately apparent that the
item seized constitutes evidence, that is, that there is probable cause to associate the
item with criminal activity. Miller v. State, 393 S.W.3d 255, 266 (Tex. Crim. App. 2012);
State v. Dobbs, 323 S.W.3d 184, 185 (Tex. Crim. App. 2010)(“so long as probable cause
to believe that items found in plain view constitute contraband arises while police are
still lawfully on the premises…the seizure of those items is permissible under the
Fourth Amendment.”).
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In a recent case which also involved a warrantless seizure of a cell phone that
relied on the plain view exception, this Court explained the distinction between the
rules governing an illegal search and those surrounding an illegal seizure. Cruse v. State,
No. 01-13-00077-CR, 2014 WL 3607250 (Tex. App.-Houston [1st Dist.] July 22, 2014,
pet. ref’d)(mem. op., not designated for publication).5 In Cruse, the victim of a gang
rape told police that several of her assailants had videotaped the assaults on their cell
phones. Cruse was one of the suspects. As a result, a police officer seized Cruse’s cell
phone. Police subsequently obtained a search warrant to view the phone’s contents,
which revealed a video of Cruse sexually assaulting the victim. Cruse filed a motion to
suppress the video from the cell phone, complaining that it had been seized without a
warrant.
In upholding the warrantless seizure of the cell phone, this Court first pointed
out the distinction between illegal searches and illegal seizures:
The prohibition on unreasonable seizures is distinct from the
prohibition on unreasonable searches. See United States v. Jacobsen, 466
U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).“A ‘seizure’ of
property occurs when there is some meaningful interference with an
individual’s possessory interests in that property.” Id. “A ‘search’ occurs
when an expectation of privacy that society is prepared to consider
reasonable is infringed. Cruse, at *2.
5
Although Cruse is an unpublished opinion and so is not binding precedent, this Court’s reasoning
in Cruse is appropriate in this case, as the facts are very similar to those presented here.
- 34 -
The Court then invoked the plain view seizure doctrine as the rationale for seizing the
phone in Cruse, since in light of what the officer knew at the time, there was probable
cause to believe the phone contained incriminating evidence:
[I]f police are lawfully in a position from which they view an object, if its
incriminating character is immediately apparent, and if the officers have
a lawful right of access to the object, they may seize it without a
warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2136-
37, 124 L.Ed.2d 334 (1993). An object’s incriminating character is
considered immediately apparent if an officer has probable cause to
believe it contains contraband. See Arizona v. Hicks, 480 U.S. 321, 326-27,
107 S.Ct. 1149, 1153–54, 94 L.Ed.2d 347 (1987); Jacobsen, 466 U.S. at
121–22, 104 S.Ct. at 1661; State v. Dobbs, 323 S.W.3d 184, 189 (Tex.
Crim. App. 2010). Cruse, at *2, 3.
The “plain view” doctrine does not apply to this case because no one testified
in this case that when it was seized, there was probable cause to believe that
Appellant’s cell phone contained incriminating evidence. This is the critical distinction
between the instant case and the facts in Cruse, where that cell phone was thought to
contain a videotape of the suspect’s criminal act. In the instant case, Sergeant Ponder
testified that the police weren’t looking for evidence, but simply went to the location
to arrest the Appellant (6 R.R. at 20). During questioning by defense counsel, Ponder
denied that it would have been apparent that the cell phone contained incriminating
evidence:
Defense counsel: You testified you were not there to look for a
phone?
Ponder: Correct.
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Q.: Is it fair to say if you saw a phone lying there you wouldn’t
induce immediately that there was anything incriminating about a phone,
would you?
A.: Correct.
Q.: You wouldn’t see a phone lying there and immediately have a
belief that it was (inaudible) crime?
A.: Correct.
Q.: And then no one had instructed you to get the phone, if you
saw one?
A.: Correct.
Q.: So you, personally, at the time you arrested him, had you been
told by Officer Cegielski that there would be incriminating evidence on
the phone?
A.: No, he never told me that.
Q.: To your knowledge, was anybody else in your unit informed
of that?
A.: No.
Q.: As far as you were concerned, his phone was of no
importance whatsoever to this case?
A.: Correct. Not that I was aware of. (6 R.R. at 39-40).
The lead investigator in the case, Sergeant Cegielski, was not present when the
cell phone was seized, but as the following exchange from the suppression hearing
makes clear, he also did not believe that the Appellant’s cell phone contained
incriminating evidence:
Defense counsel: All right. So the State questioned you, you
never discussed with the arrest team the importance or unimportance of
the phone, right?
Cegielski: No, sir.
Q.: All right. On July 3rd, you had no reason to believe that there
would be any incriminating evidence on his phone, did you?
A.: I didn’t consider the cell phone in any way at that time (6 R.R.
at 89).
- 36 -
Because there was no testimony at the suppression hearing that it was
immediately apparent to the officer that the cell phone contained incriminating
evidence, the “plain view” doctrine cannot be relied upon by the State to justify the
seizure.
3) Was seizure of the cell phone justified as being a legal seizure made
incident to the Appellant’s arrest?
A search incident to arrest is limited to the arrestee’s person and the area within
his immediate control, which is to say “the area into which an arrestee might reach in
order to grab a weapon or evidentiary items.” Chimel v. California, 395 U.S. 752, 763, 89
S.Ct. 2034, 2040 (1969). As explained supra, no theory was posited at the suppression
hearing, nor can one be conjured, where it could be seriously argued that the
Appellant’s cell phone, lying on the floor in an upstairs bedroom, could pose a danger
to officers after the Appellant was in custody in a police car outside.
With respect to what police may do incident to an arrest, in terms of
inventorying and safeguarding an arrestee’s belongings that are inside private
premises, rather than in an automobile, the Court of Criminal Appeals addressed this
issue in Moberg v. State, 810 S.W.2d 190 (Tex. Crim. App. 1991). Moberg was arrested
at a motel room pursuant to a valid arrest warrant involving the aggravated sexual
assault of his teenage daughter. After Moberg had already been taken to the police
station, police returned to the motel room, were allowed entry by the manager, and
- 37 -
removed Moberg’s suitcase, an ice chest, a laundry basket, and clothing. In the laundry
basket, the police found incriminating photographs of Moberg having sex with
underage girls. Id., at 192.
The Court of Criminal Appeals pointed out that “the doctrine of inventory
search is usually applicable when authorities have legitimately come into possession of
belongings or containers of the arrestee and they must inventory the contents of the
property initially taken into custody.” Id., at 194. In determining that Moberg enjoyed
a reasonable expectation of privacy in his motel room, the Court noted, in words that
apply equally to the instant case: “Appellant had brought his personal belongings into
the room and treated the room as if it was a place where he intended to repose for the
evening. In fact when the police entered the room pursuant to the arrest warrant,
appellant was on the bed in his underwear. Certainly appellant was treating the room
as a place where a traveler could obtain privacy away from all interlopers.” Id., at 192.
The Court reversed Moberg’s conviction due to the unlawful seizure of his
belongings.
The State bears the burden of establishing that the police conducted a lawful
inventory search. Moskey v. State, 333 S.W.3d 696, 700 (Tex. App.-Houston [1st Dist.]
2010, no pet.). The State satisfies this burden by demonstrating that (1) an inventory
policy exists and (2) the officers followed the policy. Id.
- 38 -
As with various other matters issues that were relevant to the Appellant’s
motion to suppress (consent, plain view, independent source, attenuation), the State
provided no evidence that its seizure of the Appellant’s cell phone was done pursuant
to any inventory policy, or even that the phone was seized because it was with the
Appellant’s clothing. Lela Thomas refuted that possibility and the trial court believed
her. The State chose to provide no evidence of any inventory policy at the hearing,
nor did they give any explanation for why the police felt authorized to seize the
phone, just as the State inexplicably did not present the police officer who seized the
phone (or even his name), or the affidavit, contents or time of issuance of the
subsequent search warrant. The seizure of the Appellant’s cell phone cannot be
justified as an inventory search in the absence of any testimony by the State that it was
seized for that reason.
Did the Appellant abandon his cell phone? There is no evidence that the
Appellant abandoned his cell phone. No seizure occurs under the Fourth Amendment
if police take possession of property that has been abandoned. Comer v. State, 754
S.W.2d 656, 659 (Tex. Crim. App. 1986). However, abandonment requires proof that:
(1) the individual intended to abandon the property; and (2) that he freely decided to
abandon the property. Id. Intent to abandon property is typically “inferred from
words spoken, acts done, and other objective facts and relevant circumstances.”
McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997). There is nothing to
- 39 -
suggest that the Appellant intended to abandon his cell phone in this case. The
Appellant was faced with a situation where 6-8 armed policemen had come to the
door with a warrant for his arrest. He surrendered quickly, not even taking time to
dress himself. Under these circumstances, it cannot be said that he intended to
abandon his phone any more than he intended to abandon his clothing. His obvious
intent under the situation was to quickly surrender to avoid any conflict with the
police downstairs.
4. “Independent source” and “attenuation of taint”
Under the “independent source” doctrine, the exclusionary rule does not
exclude evidence which is lawfully obtained through means that are independent of
the initial illegality. The Court of Criminal Appeals held in Wehrenberg v. State, 416
S.W.3d 458, 465 (Tex. Crim. App. 2013), that evidence obtained pursuant to an
independent source is not obtained in violation of the law and so is not subject to
suppression under Article 38.23. Rather, evidence is obtained in violation of the law
only if there is some causal connection between the illegal conduct and the acquisition
of evidence.
In Wehrenberg, the Court cited the rule announced in Segura v. United States, 468
U.S. 796 (1984), that “notwithstanding a prior instance of unlawful police conduct,
evidence actually discovered and obtained pursuant to a valid search warrant is not
subject to suppression, so long as the police would have sought the warrant regardless
- 40 -
of any observations made during the illegal entry.” Id., at 465-466. In Segura, the
warrant that police obtained after an initial illegal entry into the defendant’s apartment
“was issued wholly on information known to the officers before the entry into the
apartment,” and “none of the information on which the warrant was secured was
derived from or related in any way to the initial entry into petitioners’ apartment.”
Segura, 468 U.S. at 814.
In Davila v. State, 441 S.W.3d 751 (Tex. App.-Houston [1st Dist.] 2014, pet.
ref’d), this Court concluded that an initial warrantless sweep of Davila’s home by
police was illegal. Id., at 758. However, citing Wehrenberg, this Court also found that
none of the information that was utilized to obtain the subsequent warrant to search
Davila’s house came from the prior, unlawful sweep, but was instead from an
independent source. Id., at 760. Concluding that “[B]ecause the affidavit (in support of
the search warrant) contained sufficient allegations that were independent of any
tainted information, we conclude that the affidavit established a ‘fair probability’ that
cocaine would likely be found upon searching Davila’s home.” Id., at 761.
The independent source doctrine does not apply in the instant case because
there is an obvious causal connection between the initial illegal seizure of the
Appellant’s cell phone and the officers’ subsequent acquisition of its contents. Unlike
the facts in Wehrenberg, Segura or Davila, at the time of the initial illegal seizure of the
Appellant’s phone, the police did not have any basis for believing that the phone
- 41 -
contained incriminating evidence. The State made no attempt at the suppression
hearing to establish any independent source that justified the later search warrant for
the contents of the Appellant’s cell phone. Neither the search warrant nor its
underlying affidavit was produced at the hearing, nor did the officers who testified
suggest that they had other information that constituted an independent source. For
example, if Sergeant Cegielski had testified that prior to the initial seizure of the
Appellant’s cell phone, police already had probable cause to believe that the phone
contained incriminating photos, then that may have constituted an independent
source that would have broken the link between the initial illegality of seizing the
phone and the later seizure of the photos from the phone.
To the contrary, Cegielski admitted at the hearing that the cell phone first
became relevant only after he discovered the officers had brought it with them from
the residence (6 R.R. at 86). There was an obvious causal connection between the
procurement of the information via the subsequent warrant and the initial seizure of
the phone. No information whatsoever was produced at the suppression hearing
which suggested that the search warrant was based on independent information.
Under the “attenuation doctrine” only evidence sufficiently attenuated from
illegal police conduct can be admitted under Article 38.23. Johnson v. State, 871 S.W.2d
744, 750-751 (Tex. Crim. App. 1994); Sims v. State, 84 S.W.3d 805, 810 (Tex. App.-
Houston [1st Dist.] 2002, no pet.). The question in this case thus becomes whether
- 42 -
the subsequent warrant to search the Appellant’s cell phone was sufficiently purged of
the primary taint of the illegal seizure of the cell phone.
It is the State’s burden to prove attenuation:
In summary, then: A defendant has the burden of showing that
challenged evidence was obtained as a factual result of the violation of
law that he establishes. Once this is done, the State has—or should
have—the burden of persuading the trial court that the causal
connection between the violation and the State’s acquisition of the
evidence is such that the taint was attenuated and the evidence therefore
was not obtained in violation of the provision of law.
George E. Dix & John M. Schmolesky, 41 Texas Practice: Criminal Practice and
Procedure § 18:29 (3rd ed. 2011); Monge v. State, 276 S.W.3d 180, 184-85 (Tex. App.-
Houston [14th Dist.] 2009, no pet.).
In Mazuca v. State, 375 S.W.3d 294 (Tex. Crim. App. 2013), which dealt with the
specific issue of whether the discovery of an outstanding arrest warrant on a driver
was an intervening circumstance that attenuated the taint of an traffic illegal stop, the
Court of Criminal Appeals cited three factors as appropriate considerations in
determining whether the discovery of physical evidence is sufficiently attenuated from
an illegal violation by the police: (1) the temporal proximity of the illegal conduct and
the seizure of incriminating evidence; (2) the presence of intervening circumstances;
and (3) the purposefulness or flagrancy of the police misconduct. Id., at 301-307. The
Court concluded that “[w]hen police find and seize physical evidence shortly after an
illegal stop, in the absence of the discovery of an outstanding arrest warrant in
- 43 -
between, that physical evidence should ordinarily be suppressed, even if the police
misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment
rights.” Id. at 306. Although the Court had before it in Mazuca the common situation
of an illegal traffic stop followed by the discovery of an outstanding warrant on the
driver, it did not limit its discussion to those scenarios.
In any event, the State did not meet its burden in the instant case. The officer
who seized the phone did not testify at the suppression hearing, so there is nothing to
refute Lela Thomas’s testimony that the officer was looking for the Appellant’s phone
when he went upstairs. As to the temporal proximity of the initial illegal seizure of the
cell phone and the subsequent search warrant, it is anyone’s guess. The State did not
produce either the search warrant for the contents of the phone or the underlying
affidavit. As for the presence of intervening circumstances which may have attenuated
the taint, the record is silent. The State did not meet its burden.
In summary, after the Appellant met his burden of establishing that his cell
phone was seized without a search warrant, it was the State’s burden to demonstrate
that an exception to the warrant requirement existed. The State failed to provide any
testimony that justifies the warrantless seizure in this case and the trial court abused
its discretion in holding that there was a valid legal exception to the warrant
requirement.
- 44 -
D. The erroneous denial of Appellant’s motion to suppress evidence resulted in
constitutional error that resulted in harm to the Appellant
“[T]he harm resulting from a trial court’s erroneous denial of a motion to
suppress and subsequent admission of evidence obtained in violation of the Fourth
Amendment [of the United States Constitution]” is reviewed under Texas Rule of
Appellate Procedure 44.2(a)’s constitutional standard. Hernandez v. State, 60 S.W.3d
106, 107-108 (Tex. Crim. App. 2001)(constitutional error standard applies to
admission of evidence obtained pursuant to an illegal search).
Rule of Appellate Procedure 44.2(a) states:
If the appellate record in a criminal case reveals constitutional error that
is subject to harmless error review, the court of appeals must reverse a
judgment of conviction or punishment unless the court determines
beyond a reasonable doubt that the error did not contribute to the
conviction or punishment. (Emphasis added).
If the record as a whole supports even a “reasonable possibility” that the erroneously
admitted evidence contributed to the jury’s verdict, the judgment must be reversed
regardless of whether independent evidence is otherwise sufficient to sustain the jury’s
verdict of guilt. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
The seizure of the Appellant’s cell phone led to the photographs on the phone
being introduced into evidence. State’s exhibit 55 and 56 were photographs taken
within an hour or so after the shooting (8 R.R. at 233). The photographs depicted,
among others, Dexter Brown, Devonte Bennett, and Deveon Griffin (8 R.R. at 233-
- 45 -
234, 237). The harm that flowed from the acquisition of the contents of the phone
included the following:
1. At the end of her opening statement, the prosecutor told the jury that she
would present evidence of the “big break” that occurred in the investigation of the
case (7 R.R. at 19), namely, the fact that Devonte Bennett, a friend of the Appellant,
had told police that he was with the Appellant the night of the shooting and that he
saw the Appellant shooting into the crowd (7 R.R. at 19). This testimony would
obviously be very important because without Bennett, the State’s case relied upon a
sole eyewitness, Oscar Jeresano.
When he was called by the State as a witness, Bennett ultimately refused to
answer the prosecutor’s questions, but not before he did initially verify that he was
one of the persons pictured in the cell phone photograph (State’s exhibit 56) from the
Appellant’s phone (7 R.R. at 131-136, 139). He was later held in contempt of court for
refusing to testify, and was ordered to serve 180 days in jail (8 R.R. at 133-134).
In the absence of the photographs downloaded from the Appellant’s phone,
the prosecutor’s assertion in her opening statement that Devonte Bennett was with
the Appellant the night of the shooting and saw him shoot into the crowd would have
remained just that…an assertion. However, the photographs which comprised State’s
exhibits 55 and 56 established that Bennett was indeed with the Appellant, only an
- 46 -
hour after the shooting, and so lent some credence to the prosecutor’s assertion
during her opening statement.
2. Dexter Brown was also pictured in the cell phone photographs. During his
testimony, Sergeant Cegielski recounted that Oscar Jeresano had identified Dexter
Brown from a photo spread as someone he saw at the nightclub the night of the
shooting (8 R.R. at 207-208). Cegielski testified that he believed that Dexter Brown
was one of the shooters (8 R.R. at 207). As was the case with Devonte Bennett,
photos showing the Appellant with one of the suspected shooters, just an hour after
the shooting, coupled with Cegielski’s suspicions of Brown’s involvement in the
murders, would certainly have increased the likelihood of the Appellant’s involvement
in the minds of the jury.
3. Cegielski also used the cell phone photos to conclude that the Appellant
lied to the police about what he was wearing the night of the shooting (8 R.R. at 237-
238). Oscar Jeresano said the shooter was wearing a long-sleeved dark shirt. The
prosecutor argued in his closing that the Appellant had initially told police that he was
wearing something similar, but in the cell phone photos, he was wearing a white shirt
and red shorts (10 R.R. at 12). Thus, the Appellant’s cell phone photos were used to
impeach the Appellant’s statement to the police, and by the prosecutor in his closing
argument as evidence that the Appellant “lied about what he was wearing” (10 R.R. at
12).
- 47 -
In short, the photos from the Appellant’s cell phone provided the State with
evidence which linked the Appellant…only an hour after the shooting…to other
persons the police considered suspects and also cast doubt on the Appellant’s
credibility in the story he initially gave to police. Because there is clearly a “reasonable
possibility” that the erroneously admitted evidence from the cell phone contributed to
the jury’s verdict, the judgment must be reversed regardless of whether independent
evidence is otherwise sufficient to sustain the jury’s verdict of guilt. Mosley v. State, 983
S.W.2d 249, 259 (Tex. Crim. App. 1998).
Issue Four
The trial court erred in overruling defense counsel’s objection to
the prosecutor’s closing argument, which interjected new and
harmful facts into the proceedings through unsworn jury
argument, namely, that a witness who had not testified at trial had
given the Appellant’s name as someone involved in the shooting.
Argument
A. Statement of Facts
Prior to trial, defense counsel filed a motion in limine, in which she asked that
the State approach the bench before eliciting certain evidence. Among other evidence
that was the subject of the motion was the following:
“1. Any reference, either directly or indirectly, whether in opening statement,
argument, jury selection, or otherwise, to the statements against my
Client Uvukansi’s interest by Dedrick Foster, who is now deceased in
violation of the Confrontation Clause. Defense counsel never had the
opportunity to cross examine Dedrick Foster about these statements”
(C.R. at 1035-1038).
- 48 -
At a brief hearing regarding the motion in limine, which took place prior to the
beginning of testimony, the trial court asked the prosecutor: “Regarding Number 1,
do you have any problems?” to which the prosecutor replied she did not (7 R.R. at 8).
In her opening statement, the prosecutor, recounting the difficulty police
initially had in developing leads in the case, told the jury: “A man comes forward and
says he has information, and based on that information the defendant is developed as
a suspect. Now that man that came forward, Dedrick Foster, you won’t hear from
him. He was killed two weeks after talking to the police.” (7 R.R. at 17). The
prosecutor did not say…because it would have been a clear violation of the motion in
limine…that Foster had named the Appellant as being involved in the killings. From
the prosecutor’s statement, the jury was left with the bare information that Foster had
some information from which the police were able to develop the Appellant as a
suspect. It could simply have been that he had identified a photograph of the
Appellant, or that he confirmed that the Appellant was a member of the Bloods, or
provided some other type of preliminary information from which the police were able
to investigate their case further. But her remarks in her opening statement stayed
within the boundaries of what was appropriate, by not communicating to the jury that
Foster had actually told the police that the Appellant was involved in the shootings.
- 49 -
At trial, the lead investigator in the case, Officer Cegielski, was testifying
regarding the fact that his investigation into the killings was initially unsuccessful,
when the following transpired:
“PROSECUTOR: Did you meet with Dedrick Foster?
CEGIELSKI: Yes, ma’am.
Q.: And during your interview with him, did the name…”
At this point, defense counsel asked to approach the bench, apparently
concerned that the prosecutor might elicit what Foster, now deceased, had said to
Cegielski, in violation of the motion in limine and the agreement by the prosecutor
that she would not introduce anything Foster had told police. The prosecutor assured
defense counsel and the trial court that “I am not going to get him to say anything
that this witness said. I’m going to ask him some information about what he did, not
asking for what the response was from that witness.” (8 R.R. at 197).
Then in closing argument, despite having told the jury that they would not be
hearing from Foster, and after reassuring the court and defense counsel that she had
no intention to elicit anything Foster had said to police, the prosecutor accomplished
through unsworn jury argument what she could not have gotten into evidence, and
which she had vowed not to discuss:
“But then they (the police) got a break. Dedrick Foster came
forward and he gave this defendant’s name as someone involved in the shooting.”
(10 R.R. at 31)(emphasis added).
- 50 -
No evidence had been adduced that Foster had told the police that the
Appellant was “involved in the shooting.” Defense counsel objected that the
prosecutor was arguing “outside the record” that “there’s no evidence of that in the
record.” The trial court overruled the objection (10 R.R. at 31). Thus, although
obviously quite aware that it would be improper to elicit through Officer Cegielski
what a dead man had said previously, and having reassured the trial court twice that
she would not do so, the prosecutor improperly conveyed to the jury what Foster had
said to the police during her argument, by telling them that “he gave this defendant’s
name as someone involved in the shooting.” It is important to remember that the
defense in this case rested primarily on the fact that there was only one eyewitness
who had testified that the Appellant was the shooter, and had argued that his
testimony was not credible. The effect of the prosecutor’s improper jury argument
was to inform the jury, through her unsworn jury argument, that there was another
witness who told the police that the Appellant was involved in the murders, a witness
that the defense had no opportunity to investigate or cross-examine. 6
B. Error and harm analysis
The most fundamental rule of closing argument is that counsel
must confine their arguments to the evidence that was introduced during
6
This was not the only time in the trial that the prosecutor informed the jury, through her own
unsworn commentary, that a witness who did not testify had told police that the Appellant was the
shooter. During her opening statement, the prosecutor told the jury that Devonte Bennett saw the
Appellant “shooting those people” (7 R.R. at 19). Bennett refused to testify (7 R.R. at 131-146).
Thus, through her opening statement and her closing argument, the prosecutor effectively informed
the jury of two people who linked the Appellant to the murder…without eliciting a word of
testimony from either witness.
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the trial and to reasonable deductions from that evidence. Counsel may
not argue outside that record and ask the jury to speculate as to what
evidence might have been introduced. It would be of little benefit to
have an elaborate set of rules defining what evidence can and cannot be
introduced during trial if counsel could ignore those rules and interject
new matters by statements during closing argument. Evidence must be
received from the witness stand, not from the mouths of counsel.
George E. Dix & John M. Schmolesky, 43 Texas Practice: Criminal Practice and
Procedure § 45:9 (3rd ed. 2011). The law requires, and presumes, a fair trial, free from
improper argument by the State. Acosta v. State, 411 S.W.3d 76, 92-93 (Tex. App.-
Houston [1st Dist.] 2013, no pet.).
The suggestion that Dedrick Foster “gave this defendant’s name as someone
involved in the shooting” was never raised in the trial, was not a reasonable deduction
from the evidence, and was not an answer to any argument of opposing counsel.
To complain of improper jury argument on appeal, a defendant must generally
have objected to the argument and pursue the objection to an adverse ruling. Cockrell
v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Such was done in this case when
defense counsel objected that the prosecutor was arguing “outside the record” and
that “there’s no evidence of that in the record.” The trial court overruled the
objection (10 R.R. at 31). Therefore, the objection was met with an adverse ruling and
the issue is preserved.
Although it is an area of special concern, argument inviting speculation
on evidence outside the record does not constitute constitutional error.
Rather, the error is judged under the standard applicable to
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nonconstitutional error, whether the error had a substantial and injurious
effect or influence in determining the jury’s verdict.
In determining if the error is harmless, it is important whether the trial
court overruled the trial objection or sustained it. If the trial court
overruled an objection to an improper argument, that has the effect, in
the eyes of the jury, of the trial court approving of the argument and
makes it more likely an appellate court will find the error reversible.
George E. Dix & John M. Schmolesky, 43 Texas Practice: Criminal Practice and
Procedure § 45:10 (3rd ed. 2011).
The harm standard in Texas for nonconstitutional error in jury argument is
taken from the federal standard:
(1) the severity of the misconduct; (2) measures adopted to cure the
misconduct; and (3) the certainty of conviction absent the misconduct.
See United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994), cert. denied, 514 U.S.
1087 (1995); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (applying
federal test in determining that improper prosecution argument was harmless error).
As to the severity of the prosecutor’s misconduct in arguing as she did, her
argument came after two previous junctures in the trial where she indicated that she
understood that any mention of what Dedrick Foster had told police about the
Appellant’s involvement in the murder was inadmissible and inappropriate: at the
hearing held pursuant to the motion in limine, and as she questioned Officer
Cegielski. The prosecutor cannot be said to have misunderstood the significance of
her comments in this case, where the gravamen of the defense was that the only
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eyewitness, Oscar Jeresano, was mistaken about his identification of the Appellant as
a shooter. Telling the jury that Dedrick Foster had “gave this defendant’s name as
someone involved in the shooting” informed the jury, through the prosecutor’s
argument, that there was more than just eyewitness testimony. There was also an
absent witness, whom the jury had also been informed had been killed, who linked the
Appellant to the shooting. Not only did this bolster the testimony of the single
eyewitness to the offense, but it also ran the extreme risk of the jury wondering why
someone whom they now understood to have linked the Appellant to the shooting
had been killed. Obviously, as defense counsel made clear, she had not been given any
opportunity to cross-examine Foster.
As stated supra, no curative measures were taken by the trial court when the
defense objected. To the contrary, the trial court overruled the objection, thereby
indicating that the prosecutor’s interjection of unproven facts was appropriate and
that the jury was free to consider it.
Finally, with respect to the certainty of conviction absent the misconduct, it is
impossible to say what effect the prosecutor’s new information had on the jury, but it
is reasonable to conclude that it was critical in a one-eyewitness case. The prosecutor’s
careful assurances at both the motion in limine hearing and during Cegielski’s
testimony, which revealed her understanding of how explosive any testimony would
be concerning what Foster had told police, cannot be reconciled with any conclusion
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that informing the jury of what he said for the first time at closing argument was
insignificant since a conviction was certain anyway.
The prosecutor’s reckless interjection of new and harmful facts through
unsworn jury argument cannot be disregarded in this case because it affected the
Appellant’s substantial rights under Tex. R. App. P. 44.2(b), specifically, his right to a
fair trial based upon evidence received from the witness stand, rather than from the
prosecutor’s mouth. As a result, the judgment of conviction should be reversed, and
the case remanded for a new trial.
PRAYER FOR RELIEF
Feanyichi Uvukansi prays that for the reasons stated, this Court reverse the
judgment of conviction and remand this case for a new trial or in the alternative,
reform the judgment to reflect a conviction for murder, and remand the case for a
new punishment hearing.
Respectfully submitted,
Alexander Bunin
Chief Public Defender
Harris County Texas
/s/ Bob Wicoff
Bob Wicoff
Assistant Public Defender
Harris County Texas
1201 Franklin, 13th floor
Houston Texas 77002
(713) 274-6781
TBA No. 21422700
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CERTIFICATE OF SERVICE
A true copy of this brief has been served on the appellate division of the Harris
County District Attorney’s Office on the 9th of March, 2015, by emailing a copy
through the efile.txcourts.gov system
/s/ Bob Wicoff
Bob Wicoff
CERTIFICATE OF COMPLIANCE
The undersigned certifies that this brief complies with the length requirements
of Tex. R. App. P. 9.4(i). Specifically, the foregoing brief contains a total of 14,295
words, which is the total word count excluding those matters listed in Tex. R. App. P.
9.4(i)(1).
/s/ Bob Wicoff
Bob Wicoff
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