Holder v. State

595 S.W.3d 691

Christopher James HOLDER, Appellant

v.The STATE of Texas

NO. PD-1269-16

Court of Criminal Appeals of Texas.

Delivered: March 11, 2020

OPINION

Hervey, J., delivered the opinion of the Court in which Keller, P.J., Keasler, Richardson, Newell, and Walker, JJ., joined.

The Stored Communications Act (the SCA) is a federal statute through which the State can obtain historical cell site location information (CSLI) showing the location of a cell phone dozens of times a day up to five years in the past. A court can order such records disclosed if the government shows "specific and articulable facts ... that there are reasonable grounds to believe that the ... records or other information sought, are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d).

Christopher James Holder, Appellant, was charged with capital murder. During the course of the investigation, police accessed 23 days of his CSLI to corroborate his alibi that he was out of town when the victim was killed. But Appellant lied. The records showed that he was near the victim's house at the time of the murder. After he was arrested and charged, Appellant filed two motions to suppress.¹ In one of them, he alleged that the "specific and articulable" statutory standard was not met and that the records should have been suppressed because accessing the CSLI violated Article I, Section 9 of the Texas Constitution.² The trial court denied the motion. On direct appeal, the court of appeals affirmed the trial court's rulings. Holder v. State , No. 05-15-00818-CR, 2016 WL 4421362 (Tex. App.—Dallas Aug. 19, 2016) (not designated for publication).

On discretionary review, Appellant argues that the court of appeals was wrong on both accounts. We agreed to review his SCA claim, but not his Article I, Section 9 claim. Due to intervening legal developments, however, we retrospectively granted Appellant's Article I, Section 9 claim and ordered briefing from the parties. Holder v. State , ––– S.W.3d ––––, 2019 WL 5445198 (Tex. Crim. App. Oct. 23, 2019) (per curiam) (ordering briefing on Appellant's Article I, Section 9 issue).

FACTUAL BACKGROUND³

In the summer of 2012, Appellant and his girlfriend, Casey James, moved into Billy Tanner's home with James's two children. Tanner was James's ex-stepfather.⁴ By October, Appellant's and James's relationship soured, and Tanner asked Appellant to move out. Appellant moved into his tattoo shop in Irving, but James and her daughters continued to live in Tanner's home. In early November, James spoke to Appellant and told him that one of her daughters, C.J., told her that Tanner was "nasty" and that he slept without his underwear. James asked Appellant if he had ever seen Tanner act inappropriately around C.J., and he said that he had. According to Appellant, he never said anything to James though because James was in the room when it happened. James concluded that Tanner had not been inappropriate after she and a friend of hers spoke to C.J. The next time James spoke to Appellant, she told him that she would be out of town between November 9 and November 11 and that her kids were going to stay with one of her friends while she was gone.⁵

When James returned to Tanner's home on November 11 at about 8:00 p.m., she thought that something was wrong. The garage-door opener did not work, and Tanner's truck was not at the house, which was surprising because he was normally home at 8:00 p.m. on a Sunday. She entered the house through a sliding glass door in the back, and when she walked in, it was pitch black, which was unusual, and there was a horrible smell. She also noticed that someone had hung a blanket over the sliding glass door that had partially fallen and that there was "liquid running down the hallway." Investigators later discovered that someone had tried to burn the house down.⁶ James was afraid and went back to her vehicle where her two children were sleeping. She called her mother, who told her to call the police. James called the police, and they responded to the possible burglary.

Police found Tanner's body in the house. According to one officer, it looked like the body had "been there awhile...." He had suffered blunt-force trauma to the head and was stabbed twenty times. A stab wound to Tanner's neck was inflicted post-mortem, and Tanner had defensive-type wounds on his hands. There was blood all over his body and around it. Police concluded that the murder was a crime of passion, not a burglary gone wrong, even though Tanner's wallet had been stolen.⁷

They also found two black latex gloves on the kitchen table, which James said were not there when she left for the weekend. James had never seen black latex gloves at the house or seen Tanner with black latex gloves. But on Facebook there was a picture of Appellant wearing similar black latex gloves while he was tattooing someone, and DNA testing showed that "it would be extremely unlikely that anyone other than [Appellant] was a major contributor from [the] three glove swabs."

The morning of November 12, police obtained a court order directing AT&T Wireless (AT&T) to disclose call log and CSLI records showing the location of Appellant's cell phone between October 20 and November 12, but an AT&T representative declined to produce them because, according to them, the court order had to be based on probable cause.⁸ After changing the phrase "reasonable suspicion" to "probable cause," the petitioning officer took the new order to a judge, who signed it.⁹ According to the officer, "[i]t was simpler for [him] to just change the wording[,] have it re-signed[,] and bother the judge one more time...."

The second petition stated that,

Pursuant to the authority of article 18.21, Section 5, Texas Code of Criminal Procedure, Petitioner hereby makes written application for a Court Order to obtain the below-listed records or information pertaining to a subscriber or customer of the below-listed electronic communication service.

The following records or information are sought:

Any and all records regarding the identification of a AT&T Wireless user with the assigned telephone number of: ... to include subscriber's name, address, date of birth, status of account, account history, call detail records, including tower information for calls made or received, for the period of October 20, 2012 through November 12, 2012, service address and billing address, ANI, method of payment and information on any and all other numbers assigned to this account or this user in the past or present. Affiant also requests that this order allow for the precision location/GPS location of the cellular handset to be provided for a period of 20 days beginning November 12, 2012.

* * *

Petitioner has probable cause that the above records or information are relevant to a current, on-going police investigation of the following offense or incident:

Death Investigation – Texas PC 19.03

The cellular telephone was used by a possible suspect to communicate with unknown persons and obtaining the locations of the handset will allow investigators to identify if this suspect was in the area at the time of the offense and will provide investigators leads in this case.

AT&T then emailed Plano police 23 days of Appellant's call log and historical CSLI records from between October 20 and November 12.

That same day, police interviewed Appellant and asked him where he was the weekend of November 9 and whether he had his cell phone with him. Appellant responded that he was in Irving and that he had his cell phone with him. Police then confronted Appellant with the CSLI showing that he was in Tanner's coverage area multiple times that weekend, which contradicted his story that he was out of town. Suddenly, Appellant remembered that he was near Tanner's house that weekend, but he was only there to buy drugs and never went to Tanner's house. The police asked Appellant about Tanner and C.J., and Appellant told them that "children shouldn't be molested."

The call log records showed that Tanner was alive until at least 2:35 p.m. on November 10 because that is when he ended a phone call with his parents.¹⁰ The records also showed that, between 3:28 p.m. and 4:16 p.m. the same day, Appellant's cell phone connected to the tower that "best served" Tanner's home. (According to the State, this is when Tanner was killed.) By 4:16 p.m., Appellant's cell phone had left the area, but it reentered the area at 12:41 a.m. on November 11. Appellant's phone was pinging in Tanner's coverage area until 12:44 a.m. From 12:44 a.m. to 2:11 a.m., there was no activity on Appellant's phone. At 2:11 a.m., the phone pinged a tower near the parking garage where police found Tanner's abandoned truck.

In January, a Tarrant County fire investigator told Plano detectives that an inmate named Thomas Uselton (Uselton) had information about the murder. Uselton told the detectives that he had known Appellant for a few years and that Appellant called him on November 10 around 2:00 p.m. or 3:00 p.m. because he wanted to buy drugs. According to Uselton, Appellant sounded "real hysterical, like real hyper." Uselton said that Appellant called him back later that day and asked him to help with "something" and that he agreed. Appellant rode with his ex-girlfriend to Fort Worth to pick up Uselton.¹¹ After they picked him up, she drove them to Appellant's tattoo parlor, where Appellant picked up some bleach and black latex gloves, then to Tanner's house. According to Uselton, when they entered Tanner's house, Appellant hugged him and told him that "[h]e's dead. We ain't got to worry about it." Uselton asked who was dead, but then he saw Tanner's body around the corner. Appellant said, "[T]hink about our family, bro. You know what it is if you say anything." Uselton asked what Tanner did, and Appellant responded that "He molested a little girl." Uselton understood Appellant's comment as an admission that he killed Tanner. Uselton said that Appellant's...