The opinion
ACCEPTED
01-15-00239-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/23/2015 12:46:39 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00239-CR
No. 01-15-00240-CR
FILED IN
______________________________________________
1st COURT OF APPEALS
HOUSTON, TEXAS
9/23/2015 12:46:39 AM
IN THE CHRISTOPHER A. PRINE
COURT OF APPEALS FOR THE Clerk
FIRST DISTRICT OF TEXAS
AT HOUSTON
______________________________________________
OSCAR RENE RIVERA
VS.
THE STATE OF TEXAS
______________________________________________
Appealed from the 185th District Court
of Harris County, Texas
Cause Numbers 1423701 & 1423702
______________________________________________
APPELLANT’S BRIEF
______________________________________________
RANDALL J. AYERS
Attorney for Appellant
State Bar No. 01465950
P.O. Box 1569
Houston, Texas 77251-1569
rjayerslaw@comcast.net (email)
(281) 493-6333 (telephone)
(281) 493-9609 (fax)
ORAL ARGUMENT WAIVED
1
IDENTIFICATION OF THE PARTIES
Pursuant to Tex. R. App. P. 38.1(a), a complete list of the names of
all interested parties is provided below:
1. OSCAR RENE RIVERA – Appellant
TDCJ Inmate #02018188
Garza West Unit
4250 Highway 202
Beeville, Texas 78102-8997
2. PATRICK RUZZO – Trial Counsel for Appellant
1900 North Loop West, Suite 500
Houston, Texas 77018-8120
3. RANDALL J. AYERS – Appellate Counsel for Appellant
P.O. Box 1569
Houston, Texas 77251-1569
4. CHRISTOPHER HANDLEY – Trial Counsel for State
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002-1997
5. ALAN CURRY – Chief Appellate Counsel for State
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002-1997
6. HONORABLE SUSAN BAETZ BROWN – Trial Judge
185th District Court
1201 Franklin, 17th Floor
Houston, Texas 77002-1913
2
TABLE OF CONTENTS
Page
IDENTIFICATION OF THE PARTIES ………………………..…. 2
INDEX OF AUTHORITIES ……………………………………..… 4
STATEMENT REGARDING ORAL ARGUMENT ……………… 5
STATEMENT OF THE CASE …………………………………..… 5
ISSUES PRESENTED FOR REVIEW ……………………………. 6
SUMMARY STATEMENT OF FACTS …………………………… 6
SUMMARY OF THE ARGUMENT ……………………………… 7
POINT OF ERROR ONE ………………………………………….. 8
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
CHALLENGES FOR CAUSE AGAINST FOUR SPECIFIED
MEMBERS OF THE JURY VENIRE WHO INDICATED THAT
THEY WOULD CONSIDER A DEFENDANT’S FAILURE TO
TESTIFY AS EVIDENCE AGAINST HIM AT TRIAL AND AGAINST
THREE SPECIFIED MEMBERS OF THE JURY VENIRE WHO
INDICATED THAT THEY COULD NOT CONSIDER ASSESSING
PROBATION IN AN APPROPRIATE CASE.
POINT OF ERROR TWO ………………………………………….. 11
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A CELL
PHONE PURSUANT TO A SEARCH WARRANT WHERE THE
AFFIDAVIT SUPPORTING THE SEARCH WARRANT FAILED TO
ESTABLISH PROBABLE CAUSE.
CONCLUSION AND PRAYER …..……………………………… 15
CERTIFICATE OF SERVICE …………………………………..… 16
CERTIFICATE OF COMPLIANCE ………………………………. 16
3
INDEX OF AUTHORITIES
Cases Page
Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010) ……………. 9
Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995) ……………… 10
Cordova v. State, 733 S.W.2d 175 (Tex. Crim. App. 1987) …..………… 9
Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005) ……………… 12
Evans v. State, 530 S.W.2d 932 (Tex. Crim. App. 1975) ……………….. 13
Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992) ……………….. 10
Jaben v. United States, 381 U.S. 214 (1965) …………………………… 13
Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990) ……………. 13
Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1995) …………. 13
Montoya v. State, 810 S.W.2d 160 (Tex. Crim. App. 1989) ……………. 9
Pierce v. State, 696 S.W.2d 899 (Tex. Crim. App. 1985) ……………….. 9
Reese v. State, 712 S.W.2d 131 (Tex. Crim. App. 1986) ………………... 12
State v. McLain, 337 S.W.3d 268 (Tex. Crim. App. 2011) ……………… 12
Constitutional Provisions, Statutes and Rules
Tex. Code Crim. Proc. Art. 1.06 ………………..………………………. 12
Tex. Code Crim. Proc. 18.01(b) ………………………………………… 12
Tex. Code Crim. Proc. Art. 35.16(c)(2) ……..……….…………………. 9
Tex. Const. Art. I §9 …………………………………………………..… 12
Tex. R. App. Proc. 38.1(a) …...…………………………………………. 2
Tex. R. App. Proc. 39.7 ………………………………………………… 5
U.S. Const., Amend. IV …………………………………………………. 12
4
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. P. 39.7, Appellant waives oral argument.
STATEMENT OF THE CASE
Appellant was charged in separate indictments with the offenses of
indecency with a child and sexual assault of a child. (CR-A 14; CR-B 17)1.
Appellant pled not guilty and proceeded to trial. (CR-A 121-122, 135; CR-B
127-128, 136; RR-V3 6-7). The trial jury found Appellant guilty in both
indictments, and subsequently assessed Appellant’s punishment at ten years
probation in the indecency with a child case and eight years in prison in the
sexual assault of a child case. (CR-A 100, 119, 121-122, 136-137; CR-B
110, 124, 127-128, 137-138; RR-V4 92-95; RR-V5 6-7). The trial court
granted the State’s motion to cumulate the two sentences. (CR-A 108, 122,
137; CR-B 138; RR-V5 9-10). Appellant filed timely written notice of
appeal. (CR-A 129-130, 137; CR-B 130-131, 138; RR-V5 8).
1
CR-A = Clerk’s Record, Volume I of I in Cause No. 1423701; CR-B = Clerk’s Record,
Volume I of I in Cause No. 1423702; RR = Reporter’s Record, Volumes 1 through 6.
5
ISSUES PRESENTED FOR REVIEW
Did the trial court commit error when it denied Appellant’s challenges
for cause against members of the jury venire who were biased against
applicable law that Appellant was entitled to rely upon at trial, specifically
Appellant’s right not to testify at trial, and his right to have the jury consider
the full range of punishment, including probation?
Did the trial court commit error when it denied Appellant’s motion to
suppress evidence recovered in a search of a cell phone?
SUMMARY STATEMENT OF FACTS
Appellant was a childhood friend of the father of the complainant, and
temporarily lived with the complainant’s family over a period of several
months. (RR-V3 10-15, 32-34; RR-V4 7-14). The complainant testified that
beginning when she was 15 years old, she engaged in a series of voluntary
and consensual sexual activities with Appellant. (RR-V3 15, 37, 72-73; RR-
V4 7-12, 17-24, 26-30, 65). Appellant was 38 years old at the time. (RR-V3
72-73; RR-V4 63-64). The complainant testified to several incidents of
sexual activity with Appellant that took place over a period of several
months, and included acts of both oral sex and sexual intercourse. (RR-V4
6
17-24, 26-35, 44-52). The complainant’s father eventually discovered what
was going on between Appellant and the complainant, whereupon he kicked
Appellant out of his residence and called the police, who began an
investigation that eventually resulted in the filing of charges against
Appellant. (RR-V3 16-19, 26, 38, 96-97, 104; RR-V4 35-40). The
complainant testified that her relationship with Appellant continued even
after her parents had kicked Appellant out and notified the police. (RR-V4
40-61). The complainant testified that she continued to meet Appellant at
motels where they would engage in oral sex and sexual intercourse, and that
this continued until her parents caught her talking to Appellant on a cell
phone that he had given to her. (RR-V3 50-53; RR-V4 40-55, 58-61).
SUMMARY OF THE ARGUMENT
The trial court erred when it denied Appellant’s challenges for cause
against seven specific members of the jury venire where the record
established by a preponderance of the evidence that each of the seven
potential jurors was biased or prejudice against applicable law upon which
Appellant was entitled to rely at trial, and further when it denied Appellant’s
motion to suppress evidence obtained from a search of a cell phone
conducted pursuant to a search warrant that failed to establish probable
cause to support the search.
7
POINT OF ERROR ONE
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
CHALLENGES FOR CAUSE AGAINST FOUR SPECIFIED
MEMBERS OF THE JURY VENIRE WHO INDICATED THAT
THEY WOULD CONSIDER A DEFENDANT’S FAILURE TO
TESTIFY AS EVIDENCE AGAINST HIM AT TRIAL AND AGAINST
THREE SPECIFIED MEMBERS OF THE JURY VENIRE WHO
INDICATED THAT THEY COULD NOT CONSIDER ASSESSING
PROBATION IN AN APPROPRIATE CASE.
RELEVANT FACTS, AUTHORITIES & ARGUMENT
In Appellant’s case, at the conclusion of voir dire, the attorneys and
the trial judge engaged in a bench conference regarding challenges for cause
(RR-V2 116-149). After allowing for duplicate challenges excused by
agreement, the trial court took up the remaining non-agreed challenges for
cause. (RR-V2 116-147). The trial court summarily granted all five of the
challenges for cause made by the State. (RR-V2 117). Allowing for the
duplicate challenges excused by agreement, Appellant’s trial counsel had
lodged challenges for cause against 14 venire members, but the trial court
denied seven of those challenges (specifically, jurors #4, #28, #38, #40, #42,
#54, and #57). (RR-V2 118-147). Appellant’s trial counsel then requested
seven additional peremptory challenges, which the trial court denied. (RR-
V2 147-148). Appellant’s trial attorney subsequently used all ten of his
allotted peremptory strikes, including strikes on the seven specific jurors for
which the trial court had denied his challenges for cause. (CR-A 81-83; CR-
8
B 89-91). When the jury was seated for trial, Appellant’s attorney objected
to the jury as seated, and identified nine objectionable jurors on the panel on
whom he would have used peremptory strikes had he not had to use them on
the jurors for which his challenges for cause were denied by the trial court
(specifically, jurors #10, #21, #23, #24, #25, #26, #32, #33, and #39). (RR-
V2 148-149). The trial court overruled Appellant’s objection. (RR-V2 149).
A jury venire member is subject to removal via a challenge for cause
when he has a bias or prejudice against any of the law applicable to the case
upon which the defendant is entitled to rely, either as a defense to some
phase of the offense for which the defendant is being prosecuted or as
mitigation thereof or of the punishment therefore. Cordova v. State, 733
S.W.2d 175 (Tex. Crim. App. 1987); citing Tex. Code Crim. Proc. Art.
35.16(c)(2). A venire member is subject to removal for cause if he would
consider the defendant’s failure to testify at trial as evidence against the
defendant in determining guilt. Montoya v. State, 810 S.W.2d 160 (Tex.
Crim. App. 1989). A venire member is also subject to removal for cause if
he is unable to consider the full range of punishment, including the
minimum, and more specifically probation for an eligible defendant.
Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010); Pierce v. State,
696 S.W.2d 899 (Tex. Crim. App. 1985). The burden of demonstrating that a
9
venire member should be excused for cause is on the party urging the
excusal. Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995). The
burden is only by a preponderance of the evidence. Fuller v. State, 829
S.W.2d 191 (Tex. Crim. App. 1992).
During his voir dire examination of the jury venire, Appellant’s trial
attorney asked the venire members if any of them would consider a
defendant’s failure to testify at trial as evidence of his guilt. (RR-V2 90-99).
Several venire members indicated that they would do so, including juror #4
(RR-V2 90-92), juror #38 (RR-V2 94-95), juror #40 (RR-V2 95-96), and
juror #42 (RR-V2 96-97). These four venire members statements on the
record clearly established by a preponderance of the evidence that they were
biased against applicable law upon which Appellant was entitled to rely,
specifically his constitutional right not to testify at trial. Appellant’s trial
attorney properly challenged these four venire members for cause on that
basis, and it was error for the trial court to deny those challenges. (RR-V2
118-120, 126-134).
Appellant’s trial attorney also asked the venire members during voir
dire if they could consider the full range of available punishment, including
probation in the appropriate case. (RR-V2 108-112). Several venire
members indicated that they could not consider assessing probation,
10
including juror #28 (RR-V2 110), juror #54 (RR-V2 112), and juror #57
(RR-V2 112). Again, the record clearly shows by a preponderance of the
evidence that these three jurors were biased against applicable law upon
which Appellant was entitled to rely, specifically his right to have
consideration of the full range of punishment, including probation.
Appellant’s trial attorney properly challenged these three venire members
for cause on that basis, and it was error for the trial court to deny those
challenges. (RR-V2 122-126, 138-146).
POINT OF ERROR TWO
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A CELL
PHONE PURSUANT TO A SEARCH WARRANT WHERE THE
AFFIDAVIT SUPPORTING THE SEARCH WARRANT FAILED TO
ESTABLISH PROBABLE CAUSE.
RELEVANT FACTS, AUTHORITIES & ARGUMENT
At Appellant’s trial, the State offered into evidence numerous
photographs and text messages that were taken from a cell phone that
belonged to Appellant and which was allegedly left at the complainant’s
residence and turned over to the police by her mother. (RR-V3 39-41, 50,
78-80, 85-99; State’s Exhibits 5 through 15, 17, 18, & 21). These photos and
text messages were obtained pursuant to a search warrant obtained by the
investigating officer. (RR-V3 60-66, 78-87, State’s Exhibits 19 & 20).
11
Appellant’s attorney filed a motion to suppress this evidence alleging that
the affidavit supporting the search warrant did not contain sufficient credible
facts to establish probable cause, and that the search warrant was therefore
deficient. (CR-B 95-99; RR-V3 54-56). Appellant’s attorney urged his
motion to suppress and objected to the admission of the evidence obtained
pursuant to the search warrant several times during Appellant’s trial, but the
trial court denied his motion and overruled his subsequent objections. (CR-B
99, 135; RR-V3 54-56, 81-82, 87-89).
A search or seizure must be supported by probable cause. U.S. Const.,
Amend. IV; Tex. Const. Art. I §9; Tex. Code Crim. Proc. Art. 1.06;
Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005). A search warrant
may not be issued without sufficient credible evidence establishing probable
cause for the search being presented under oath or affirmation to a
magistrate. Tex. Code Crim. Proc. Art. 18.01(b); Reese v. State, 712
S.W.2d 131 (Tex. Crim. App. 1986). In determining if there is probable
cause to support the issuance of a search warrant, the inquiry is limited to the
four corners of the affidavit supporting the search warrant. State v. McLain,
337 S.W.3d 268 (Tex. Crim. App. 2011). The credibility and reliability of
not just the affiant but also his sources of information are part of the totality
of the circumstances that must be considered in determining if probable
12
cause has been established. Jaben v. United States, 381 U.S. 214 (1965);
Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990). An affidavit
does not establish probable cause for the search when it contains no
recitation as to how the affiant learned or came by the information he relates
in support of probable cause. Matamoros v. State, 901 S.W.2d 470 (Tex.
Crim. App. 1995); Evans v. State, 530 S.W.2d 932 (Tex. Crim. App. 1975).
In Appellant’s case, an examination confined to the four corners of the
affidavit in support of the search warrant shows that it does not establish
sufficient probable cause to search the cell phone. It does not establish the
credibility and reliability of the sole source of the affiant’s information about
the cell phone, specifically the complainant’s mother, Isela Hearn. The
affidavit merely states that Ms. Hearn represented that the cell phone was a
gift from Appellant to the complainant, but contains no recitation of how
Ms. Hearn learned that information or knows it to be factually true. The
affidavit states that “Affiant was told that there were messages sent via the
Cellular phone from the DEFENDANT [Appellant] to the COMPLAINANT
which were recently intercepted by Ms. Hearn”, but again contains no
recitation of how the affiant came by that information – who told the affiant,
and how does that person know it to be true? This particular assertion by the
affiant is especially critical and goes to the very heart of the matter, because
13
absent credible and reliable information establishing the presence of such
evidence in the cell phone – something to connect Appellant to the phone
and to the complainant – there would be no probable cause to search it. And
this affidavit presents nothing more on this critical issue than a fairly
conclusory statement. Further, a close reading of the affidavit calls into
question the thoroughness of any impartial review of the sufficiency of the
probable cause since the bulk of the affidavit actually consists of the same
paragraph (beginning with the words “Affiant was given the above
mentioned Samsung Cellular phone …” and ending with the words “a
statement against her own interest”) repeated three times in close succession.
(See State’s Exhibit #19).
Given that the affidavit in support of the search warrant does not
establish sufficient probable cause to support the issuance of the search
warrant, it was error for the trial court to deny Appellant’s motion to
suppress.
14
CONCLUSION AND PRAYER
For the reasons set out in the foregoing points of error, Appellant
prays that this Honorable Court of Appeals will reverse Appellant’s
conviction and sentence and remand this case back to the trial court for a
new trial or such other relief as this Honorable Court deems appropriate.
Respectfully submitted,
/s/ Randall J. Ayers
RANDALL J. AYERS
Attorney for Appellant
State Bar No. 01465950
P.O. Box 1569
Houston, Texas 77251-1569
rjayerslaw@comcast.net (email)
(281) 493-6333 (telephone)
(281) 493-9609 (fax)
15
CERTIFICATE OF SERVICE
I certify that I served the foregoing Appellant’s Brief on the District
Attorney of Harris County, Texas, by sending a copy to Mr. Alan Curry,
Chief of the Appellate Division, Harris County District Attorney’s Office,
via electronic service to curry_alan@dao.hctx.net on September 23, 2015.
/s/ Randall J. Ayers
RANDALL J. AYERS
Attorney for Appellant
State Bar No. 01465950
P.O. Box 1569
Houston, Texas 77251-1569
rjayerslaw@comcast.net (email)
(281) 493-6333 (telephone)
(281) 493-9609 (fax)
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9(i)(3) of the Texas Rules of Appellate Procedure I
certify that this document contains a total of 2,873 words.
/s/ Randall J. Ayers
RANDALL J. AYERS
Attorney for Appellant
State Bar No. 01465950
P.O. Box 1569
Houston, Texas 77251-1569
rjayerslaw@comcast.net (email)
(281) 493-6333 (telephone)
(281) 493-9609 (fax)
16