PD-1499-15
PD-1499-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/18/2015 10:02:33 AM
Accepted 11/18/2015 3:16:00 PM
ABEL ACOSTA
IN THE CLERK
TEXAS COURT OF CRIMINAL APPEALS
AROLDO HUMBERTO CADRIEL,
Petitioner,
vs. No. __________________________
THE STATE OF TEXAS,
Respondent.
PETITION FOR DISCRETIONARY REVIEW
McDermott Will & Emery
Michael J. Wynne
TX Bar No. 00785289
McDermott Will & Emery
1000 Louisiana Street, Suite 3900
Houston, TX 77002
Tel: (713) 653-1700
November 18, 2015
Fax: (713)739-7592
Email: mwynne@mwe.com
ATTORNEY FOR PETITIONER
PETITIONER REQUESTS ORAL ARGUMENT
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
Pursuant to Tex. R. App. P. 68.4(a), the list of the trial court judge, all parties to
the judgment or order appealed from, and the names and addresses of all trial and
appellate counsel is as follows:
Trial Judge: Elia Cornejo-Lopez; 404th District Court of Cameron County, Texas
Final Judgment entered by Judge Marisela Saldana.
Parties: State of Texas
Aroldo Humberto Cadriel
Trial counsel – for the defense: Nat Perez, Jr., 847 E. Harrison Street,
Brownsville, Texas 78520
Appellate counsel – for the defense: Philip T. Cowen, 500 E. Levee Street,
Brownsville, Texas 78520
Trial counsel for the State of Texas: Korina Barraza, Arturo Teniente and Brett
Pattillo, Assistant District Attorneys, , Office of Hon. Luis Saenz, District and
County Attorney for Cameron County, Texas, 964 E. Harrison Street, Brownsville,
Texas 78520-7123
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TABLE OF CONTENTS
Page
STATEMENT REGARDING ORAL ARGUMENT ...............................................1
STATEMENT OF THE CASE..................................................................................1
STATEMENT OF PROCEDURAL HISTORY .......................................................2
ABBREVIATIONS AND REFERENCES ...............................................................2
GROUNDS FOR REVIEW .......................................................................................2
ARGUMENT .............................................................................................................4
1. The Court of Appeals Erred in Finding Probable Cause Would Still
Exist on Excising from the Affidavit Illegally-Obtained Cell Phone Records
and in Wrongly Sanctioning the Trial Court’s Knee-Jerk Sacking of
Appellant’s Suppression Motion. ........................................................................4
2. The Court of Appeals failed with care to examine the trial court’s failure
seriously to consider competency. .....................................................................11
PRAYER FOR RELIEF ..........................................................................................13
CERTIFICATE OF SERVICE ................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................16
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TABLE OF AUTHORITIES
Page(s)
Cases
Blasdell v. State,
384 S.W.3d 824 (Tex. Crim. App. 2012) ...........................................................10
Crosby v. State,
750 S.W.2d 768 (Tex. Crim. App. 1987) ............................................................. 4
Illinois v. Gates,
462 U.S. 213 (1983) ..............................................................................................5
Ex parte LaHood,
401 S.W.3d 45, 52–53 (Tex. Crim. App. 2013) .................................................12
Miles v. State,
241 S.W.3d 28 (Tex. Crim. App. 2007) ............................................................... 8
Morris v. State,
301 S.W.3d 281, 299 (Tex. Crim. App. 2009) ...................................................11
Rodriguez v. State,
232 S.W.3d 55 (Tex. Crim. App. 2007) ............................................................... 5
Tillman v. State,
354 S.W.3d 425 (Tex. Crim. App. 2011) ...........................................................10
Turner v. State,
422 S.W.3d 676 (Tex. Crim. App. 2013) .....................................................11, 12
Turribiate v. State,
399 S.W.3d 147 (Tex. Ct. Crim. App. 2013) ....................................................... 7
United States v. Wade,
388 U.S. 218 .........................................................................................................9
Wilson v. State,
311 S.W.3d 452 (Tex. Crim. App. 2010) ............................................................. 8
Wong Sun v. United States,
371 U.S. 471 (1963) ..............................................................................................4
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Statutes
18 U.S.C. § 2702 ................................................................................................5, 6, 7
Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1),(2) (West 2006)............................11
Tex. Code Crim. Proc. Ann. art. 46B.004(b) and 46B.004(c) .................................11
Tex. Code Crim. Proc. arts. 46B.005 & 46B.021(b) ...............................................12
Tex. Crim. Proc. Code Ann. § art. 38.23 ................................................................... 8
Constitutional Provisions
Tex. R. App. P. 68.4(a) ............................................................................................. ii
U.S. Const. Am. IV ...........................................................................................passim
Additional Authorities
http://www.innocenceproject.org/causes-wrongful-
conviction/eyewitness-misidentification .............................................................. 9
K. L. Pickel, The Influence of Context on the “Weapon Focus” Effect
23 L. & Hum. Behav. 299–311 (1999) ................................................................ 9
N. M. Steblay, A Meta-analytic Review of the Weapon Focus Effect 16
L. & Hum. Behav. 413–24 (1992). .....................................................................10
Saul M. Kassin et al., On the “General Acceptance” of Eyewitness
Testimony Research: A New Survey of the Experts 56 Am.
Psychologist 405, 414 (2001). ............................................................................10
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STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes oral argument would be helpful to the Court because
some of the issues, including issues relating to the reliability and weight of
eyewitness testimony that Petitioner raises are germane to ones recently before the
Court and because the public policy matters implicated would be better discussed
in the context of oral argument, where the Court can ask questions and consider
alternatives, which counsel would be prepared to address.
STATEMENT OF THE CASE
This case concerns a conviction based primarily on fleeting eye witness
testimony, including testimony of a witness who made his observations standing at
gunpoint, not unlike the case of Brandon Scott Blasdell v. the State of Texas, PD-
0162-14, 10/15/2014. The Court of Appeals unduly relied on the reports from the
eyewitness account summarized in an affidavit supporting a search warrant
application for Petitioner’s residence to support the trial court’s finding probable
cause after excising a statement derived from telephone records unlawfully
obtained without a search warrant or court order. The Court of Appeals
compounded this error by finding lawful the Petitioner’s alleged waiver of his
rights to challenge effectively the court’s finding of competency and to challenge
by expert testimony the state’s porous ballistics evidence.
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STATEMENT OF PROCEDURAL HISTORY
(1) Date of opinion from the Court of Appeals September 25, 2015
(2) Date of Motion for Rehearing October 7, 2015
(3) Date Motion for Rehearing Denied October 19, 2015
ABBREVIATIONS AND REFERENCES
The Memorandum Opinion of the Court of Appeals is attached to this
petition as an appendix.
The Clerk’s Record (CR) is referred to by page number (e.g., CR93).
The Reporter’s Record (RR) is referred to by volume number, then page
number (e.g., 5 RR 22).
GROUNDS FOR REVIEW
1. The state’s seizure of telephone records without a warrant or court order is a
violation of the Fourth Amendment. The records must be suppressed and
cannot form the basis for a search warrant application. On review, the Court
of Appeals tried to excise the unlawfully obtained records from the search
warrant for Petitioner’s residence. All that remained to support probable
cause was a summary of a couple eyewitnesses’ fleeting accounts. One of
the purported eyewitnesses saw whoever he saw while at gunpoint seconds
2
before he fled the scene, necessarily rendering dubious the accuracy of any
identification. The other, a drug dealer, allegedly encountered the victim
with the Petitioner at 2:00 a.m. Because the lower courts refused to suppress
evidence obtained upon execution of the search warrant, the conviction must
be overturned.
2. The Court of Appeals erred in determining that the trial court conducted a
sufficient competency inquiry, as illustrated, among other ways, most
tellingly by the Court’s approving the trial’s court’s cursory and casual
dismissal of the fact that Petitioner’s illogically and inarticulately declined
an opportunity to enlist an expert [at no cost] to challenge the state’s Sacking
questionable ballistics evidence. To suggest that Petitioner at the time he
made such a clearly irrational decision had the capacity to determine
voluntarily whether he first had the capacity himself to proceed with any
such decisions is disingenuous.
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ARGUMENT
1. The Court of Appeals Erred in Finding Probable Cause Would Still
Exist on Excising from the Affidavit Illegally-Obtained Cell Phone
Records and in Wrongly Sanctioning the Trial Court’s Knee-Jerk
Sacking of Appellant’s Suppression Motion.
Petitioner’s conviction rested, in large part, on evidence seized pursuant to a
search warrant executed at Petitioner’s home, specifically, the weapon allegedly
connecting Petitioner to the murder. The weapon, however, should never have
been introduced into evidence because it was the “fruit of a poisonous tree:” the
result of an unlawful search and seizure and procured in violation of Petitioner’s
Fourth Amendment rights. See, e.g., Wong Sun v. United States, 371 U.S. 471, 484
(1963); Crosby v. State, 750 S.W.2d 768, 780 (Tex. Crim. App. 1987). Probable
cause for the warrant to search Petitioner’s home was based on the review of
Petitioner’s cell phone records, which were unlawfully obtained, as described more
fully below. Because the search warrant used to enter Petitioner’s home was
constitutionally defective and invalid on its face, the Texas exclusionary rule
dictates that all evidence derived from this illegal search and seizure should have
been suppressed. Without the weapon seized as a result of this invalid warrant, the
State had insufficient evidence to convict Petitioner. The Court’s failure to
suppress this evidence compels more thorough analysis to ensure justice has been
done in such a painfully consequential case.
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The cornerstone of the Fourth Amendment is that a search warrant may not be
issued without a finding of “probable cause” that a particular item will be found at
a particular location. See Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App.
2007). Probable cause for a search warrant exists if, under the totality of the
circumstances presented to the magistrate, there is at least a “fair probability” or
“substantial chance” that contraband or evidence of a crime will be found at the
specified location. Illinois v. Gates, 462 U.S. 213, 238 (1983). In this instance
case, probable cause for the warrant to search Petitioner’s home rested on two
factors: (1) Petitioner’s cell phone records from his wireless provider, Cricket,
placing him in the victim’s vicinity, and (2) eyewitness testimony regarding
Petitioner’s whereabouts. Each of these factors is discussed below.
With respect to the first factor, Petitioner’s cell phone records were unlawfully
obtained and therefore cannot form the basis for probable cause. It is undisputed
that the government did not obtain a warrant or court order to obtain Petitioner’s
cell phone records, in clear violation of Petitioner’s statutory and constitutional
rights. See 18 U.S.C. § 2702(c)(1). No exigent circumstances justify the
government’s failure to secure a warrant and therefore the unlawfully-obtained cell
phone records cannot form the basis for probable cause. The murder had already
occurred, the body had already been found, and the number of bullets fired
indicated that whoever committed the act clearly intended to attack a specific
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person. The state’s given rationalization for “exigent circumstances,” that once a
person has killed, he or she may kill again is disingenuous and self-serving. See 4
RR 35-45. Moreover, Appellant had voluntarily come to the police station for
questioning, and they had let him leave, belying any suggestion that he was
dangerous to the community at large. Id. The state’s explanation for letting him
go and out of the same mouth claiming that an exigent threat existed to the
community at large, rationalizing an unadorned contempt for the Fourth
Amendment, id., – that it had no suspect -- is whimsical. Such an unwieldy and
convenient exception to the warrant requirement, if embraced any more widely,
would swallow the structural, cherished, and sacred Fourth Amendment warrant
requirement.
Under the Stored Communications Act (“SCA”), a provider may disclose
customer records (including cell phone records) without a court order or a warrant
in emergency situations. 18 U.S.C. § 2702 sets forth the general rule that
“electronic communication service to the public shall not knowingly divulge” the
contents of a communication. The statute, however, provides an exception for
disclosure of customer records to a governmental entity “if the provider, in good
faith, believes that an emergency involving danger of death or serious physical
injury to any person requires disclosure without delay of information relating to the
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emergency.” Id. at § 2702(c)(4). Here, there was no such emergency, and the
state’s warrantless procurement of the phone records was unlawful.
The State secured Petitioner’s phone records from Petitioner’s wireless
provider, Cricket, by submitting an exigent circumstances form, ostensibly in
compliance with 18 U.S.C. § 2702(c)(4). By submitting this form, the State
vouchsafed that there was an emergency involving a danger of death or serious
physical injury to a person requiring disclosure without delay of communications
related to the emergency, and that the emergency justified disclosure of phone
records without a warrant or court order. However, the facts of this case belie
the contention that any exigent circumstance existed.
Exigent circumstances usually involve an increased likelihood of apprehending
a suspect, danger to the victim or police, or the possible destruction of evidence.
See Turribiate v. State, 399 S.W.3d 147, 151 (Tex. Ct. Crim. App. 2013)
(addressing the law applicable to warrantless entry and acknowledging that a
warrantless entry into a residence is presumptively unreasonable). As previously
discussed, none of these circumstances apply here. The State’s rote “compliance”
with the pro forma requirements of 18 U.S.C. 2702(c)(4) are insufficient to pass
statutory or constitutional muster. Again, if exigent circumstances were to exist
simply because it is expedient for the state to claim they do, the exigent
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circumstances exception swallows the rule and the protection afforded by the
warrant requirement is illusory.
Texas’s broadly-worded exclusionary rule, which is enshrined in statute,
compels exclusion of any evidence resulting from the wrongfully-obtained
warrant. Tex. Crim. Proc. Code Ann. § art. 38.23 requires exclusion of “evidence
obtained by an officer or other person in violation of any provisions of the
Constitution or laws of the state of Texas, or of the Constitution or laws of the
United States of America . . . evidence against the accused [in] any criminal case.”
Article 38.23, like its federal counterpart, seeks to protect a suspect’s privacy,
property, and liberty rights against overzealous law enforcement Wilson v. State,
311 S.W.3d 452, 458–59 (Tex. Crim. App. 2010). The Texas rule also prohibits
evidence obtained through an illegal act. Id.; see also Miles v. State, 241 S.W.3d
28, 36 (Tex. Crim. App. 2007). (holding that exclusionary rule applied to
confession obtained after showing murder suspect a forged lab report purporting to
show a match between suspect’s fingerprints and those found on the alleged
murder weapon). The Texas rule further applies to evidence illegally obtained by
private citizens, “even when those [private citizens] are not acting in conjunction
with, or at the request of, government officials.” Miles, 241 S.W.3d at 36. The
broad protections afforded by the Texas exclusionary rule make plain that reliance
8
on evidence secured in violation of a defendant’s constitutional and statutory rights
is disfavored strongly.
After this constitutionally-defective evidence—the phone records— is excised,
the only remaining evidence against Petitioner is two unreliable eyewitness
accounts, which are insufficient to support a finding of probable cause. Courts
have long observed the unreliability of expert testimony. See, e.g., United States v.
Wade, 388 U.S. 218, 228, (“The identification of strangers is proverbially
untrustworthy.”). Scholars have opined regarding the impact of unreliable
eyewitness testimony on the criminal justice system for decades. See, e.g.,
Woocher, “Do Your Eyes Deceive You? Expert Psychological Testimony on the
Unreliability of Eyewitness Testimony,” Stanford Law Review, Vol. 29, No. 5
(May, 1977), pp. 969-1030. More recent studies have suggested that unreliable
eyewitness testimony is a hallmark of wrongful convictions “playing a role in
nearly 70% of convictions overturned by DNA testing nationwide.”
http://www.innocenceproject.org/causes-wrongful-conviction/eyewitness-
misidentification
One of the eyewitnesses who implicated Petitioner did so at gunpoint. The
reliability of this eyewitness identification, when made facing down the barrel of a
gun, is exceptionally suspect. See, e.g, Law and Human Behavior – K. L. Pickel,
The Influence of Context on the “Weapon Focus” Effect, 23 L. & Hum. Behav.
9
299–311 (1999); N. M. Steblay, A Meta-analytic Review of the Weapon Focus
Effect, 16 L. & Hum. Behav. 413–24 (1992). The impact of a weapon on
eyewitness identification is known in the scholarship as “the weapon focus effect.”
See id. As one expert witness explained to this Court, “weapon focus effect,” is “a
tendency, when there is a weapon involved, particularly in brief encounters, for the
weapon to essentially attract attention away from the perpetrator’s face and, by
doing so, result in lesser accuracy for the identification.” Blasdell v. State, 384
S.W.3d 824, 827–28 (Tex. Crim. App. 2012). Such testimony is, under the
appropriate set of facts, relevant to a jury as required by the state’s version of Fed.
R. Civ. P. 702. Id. at 831; Tex. R. Evid. Rule 702. This Court has also
acknowledged a 2001 survey in which seventy to eighty-seven percent of surveyed
experts found research on the topic of “weapon focus” to be reliable. Tillman v.
State, 354 S.W.3d 425, 437 (Tex. Crim. App. 2011) (citing New Jersey v.
Henderson, 208 N.J. 208, 27 A.3d 872 (2011)); see also Saul M. Kassin et al., On
the “General Acceptance” of Eyewitness Testimony Research: A New Survey of
the Experts, 56 Am. Psychologist 405, 414 (2001). This inherently defective
eyewitness testimony upon which the warrant is based—and failure to safeguard
Petitioner’s Fourth Amendment rights-- compel rehearing to reverse his
conviction.
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2. The Court of Appeals failed with care to examine the trial court’s
failure seriously to consider competency.
Petitioner’s conviction should also be reversed because he was incompetent to
stand trial. The prosecution and conviction of a defendant if he is legally
incompetent violates due process. Morris v. State, 301 S.W.3d 281, 299 (Tex.
Crim. App. 2009). To protect a defendant’s constitutional and statutory rights, a
trial court must inquire into the defendant’s mental competence once the issue is
properly brought to the court’s attention. See Turner v. State, 422 S.W.3d 676, 689
(Tex. Crim. App. 2013). A defendant is incompetent to stand trial if he does not
have “sufficient present ability to consult with [his] lawyer with a reasonable
degree of rational understanding” or “a rational as well as factual understanding of
the proceedings against” him. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1),(2)
(West 2006); See also Turner, 422 S.W.3d at 682-83 (evaluating whether
Defendant had a rational and factual understanding of the proceeding against him).
If evidence suggesting a defendant’s incompetence comes to the trial court’s
attention, the court must determine by informal inquiry whether there is some
evidence from any source that would support a finding that the defendant may be
incompetent to stand trial. See Tex. Code Crim. Proc. Ann. art. 46B.004(b) and
46B.004(c). A mere suggestion of incompetency is the threshold requirement for
an informal inquiry . . . ." Id. art. 46B.004(c-1 ).
11
In conducting its informal inquiry, a trial court must consider only the evidence
tending to show incompetency, “putting aside all competing indications of
competency, to find whether there is some evidence, a quantity more than none or
a scintilla, that rationally may lead to a conclusion of incompetency.” Ex parte
LaHood, 401 S.W.3d 45, 52–53 (Tex. Crim. App. 2013). If, after its informal
inquiry, the trial court determines that evidence exists to support a finding of
incompetency, the statutory scheme requires the trial court to conduct a formal
competency trial. Turner, 422 S.W.3d at 692; Tex. Code Crim. Proc. arts. 46B.005
& 46B.021(b).
Although the informal inquiry need not be exhaustive, the cursory glance at the
issue in this case was manifestly insufficient. Petitioner’s decision to decline to
enlist a ballistics expert—at no cost to him--to evaluate ballistics evidence calls
into question his ability to rationally and factually understand the allegations
against him. Under oath, Petitioner told the Court, in response to the Court’s
question, that he had three issues with retaining a ballistics expert, but he declined
to elaborate on those reasons stating “I just want to move on.” 3 RR 26. The
Court then asked Petitioner, at counsel’s suggestion, whether he desired to decline
testing or examination concerning his mental capacity, insanity, or diminished
capacity, Petitioner with hesitation said, “Yes, Your Honor. That my – that’s and
there are several reasons behind it.” 3 RR 27.
12
The record reflects a bench conference, during which Petitioner was
instructed to confer with his attorney for “two or three minutes.” Nothing on the
record, however, shows any inquiry into whether Petitioner understood the
consequences of declining a mental health evaluation. See 3 RR 27-28. Nor did
the Court formally confirm with Counsel that Counsel believed that Petitioner
understood the proceedings and was able to assist in his own defense.
The Court was aware of Petitioner’s disorders, including his bipolar
disorder, but simply took Petitioner’s word for it that he was “okay.” By
definition, he was not. At the very least, the Court had an obligation to address the
three issues the Petitioner twice mentioned but was not allowed the opportunity to
identify and explain on the record. While this rush to move along may have been
expedient for the Court and counsel, the informal inquiry was not sufficient to
demonstrate Petitioner’s competency. As such, it fails satisfy the very basic
constitutional protections afforded by the Constitution and Texas statute, and
warrants remand.
PRAYER FOR RELIEF
Petitioner requests that the Court of Criminal Appeals to grant this petition
for discretionary review. Petitioner also requests that this Court order all evidence
seized from the search of his residence be suppressed. Consequently, Petitioner
13
requests that this Court reverse his conviction direct the lower courts to enter a
judgment of acquittal ordered. In the alternative, Petitioner requests that this Court
remand for a new trial.
Petitioner also requests such other and further relief to which he may be
entitled.
Respectfully submitted,
/s/ Michael J. Wynne
Michael J. Wynne
TX Bar No. 00785289
McDermott Will & Emery
1000 Louisiana Street, Suite 3900
Houston, TX 77002
Tel: (713) 653-1700
Fax: (713)739-7592
Email: mwynne@mwe.com
ATTORNEY FOR PETITIONER
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CERTIFICATE OF SERVICE
I hereby certify that on November 18, 2015, a copy of the foregoing Petition
for Discretionary Review was served on the following by certified mail, return
receipt requested:
Rene B. Gonzalez, Esq.
Cameron County District Attorney’s Office
4th Floor
964 E. Harrison Street
Brownsville, TX 78520-7123
Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711
/s/ Michael J. Wynne
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CERTIFICATE OF COMPLIANCE
I hereby certify that this Petition for Discretionary Review conforms to the
requirement of Texas Rule of Appellate Procedure 9 and consists of less than 4,500
words, that is 3527 words, per Texas Rule of Appellate Procedure 9.4(i)(2)(D).
/s/ Michael J. Wynne
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