Sanderson v. State

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DEQUAVIOUS EUGENE SANDERSON, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-22-00116-CR

Court of Appeals of Texas, Seventh District, Amarillo

March 29, 2023

Do not publish.

On Appeal from the 89th District Court Wichita County, Texas Trial Court No. DC89-CR2019-0319, Honorable Charles M Barnard, Presiding

Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

MEMORANDUM OPINION

Brian Quinn Chief Justice

Appellant Dequavious Eugene Sanderson, appeals his conviction for burglarizing a habitation while committing or attempting to commit a felony. He raises six issues for consideration. We affirm.

Background

Appellant was arrested for the 2018 burglary of the Taings's home. During same, Sakoun Taing was shot in an exchange of gun fire. Appellant's arrest came after law enforcement received information from a confidential informant and from an anonymous tipster that appellant was involved in a series of burglaries. That, coupled with other evidence including cell phone "pings," led police to him.

Through the cell phone data, police located an SUV in which appellant rode and stopped it. Its occupants fled on foot. As appellant followed suit, he discarded clothing and a 9mm handgun, but police succeeded in discovering both him and the discarded items. Additionally, a search of the SUV yielded other evidence, including pairs of Reebok shoes sized 10.5 and 12.

Thereafter law enforcement compared bullets and casings from the Taing burglary to those from the handgun appellant discarded. They matched. DNA evidence taken from appellant also matched that found at the Taing burglary scene. As for the Reebok shoe found at the same scene, appellant told a third party (via a recorded jail call) that law enforcement had his shoe. Upon hearing that and other evidence, a jury found him guilty of the aforementioned offense.

Issues One and Two-Confidential Informant and Anonymous Tipster

Appellant's first two issues concern Texas Rule of Evidence 508, a crime-stopper tip, the non-disclosure of the tipster's identity, and the trial court's refusal to peruse the crime-stopper tip in camera. We overrule the issues for the following reasons.

First, "the crime stoppers statute specifically prohibits disclosure of the identity of a crime stoppers tipster," In re Hinterlong, 109 S.W.3d 611, 624 (Tex. App.-Fort Worth 2003, orig. proceeding), except as required under the state or federal constitutions. Dunn v. State, No. 14-98-00721-CR, 2000 Tex.App. LEXIS 2569, at *5-6 (Tex. App.-Houston [14th Dist.] April 20, 2000, pet. ref'd) (mem. op., not designated for publication); accord Tex. Gov. Code Ann. § 414.008(d) (stating that records of a crime stoppers organization cannot be produced in a way that identifies the tipster "unless the state or federal constitution requires the disclosure of that person's identity"). See also Tex. Gov. Code Ann. § 414.009(a)(2) (prohibiting the disclosure of the tipster's identity unless required by law or court order). At bar, appellant cites us neither a Texas nor United States constitutional provision requiring disclosure of the tipster's identity. Instead, he relies on Texas Rule of Evidence 508, which lacks constitutional imprimatur. Nor does such an evidentiary rule trump the statutory directive in sections 414.008 and 414.009. See Distefano v. State, 532 S.W.3d 25, 37 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) (stating that "[a]n evidentiary statute trumps a rule of evidence adopted by the courts"); Hitt v. State, 53 S.W.3d 697, 704 (Tex. App.-Austin 2001, pet. ref'd) (stating same).

Second, section 414.008 of the Government Code also addresses the discoverability of general crime stopper records. Normally, they are undiscoverable, except in two instances. One involves production in civil cases, the other in criminal proceedings. Regarding the latter, one desiring the records must move for same and allege they "contain[] evidence that is exculpatory to the defendant in the trial of that offense." Tex. Gov. Code Ann. § 414.008(b)(1). Appellant said nothing of this statute in his brief. Thus, the issue is inadequately briefed.

Nevertheless, the edict provides that 1) a "court may subpoena the records or report" and 2) shall conduct an in-camera inspection of materials produced under a subpoena to determine if they contain "exculpatory" evidence." Id. at § 414.008(c)(1) (emphasis added). Any duty to so subpoena and inspect, however, does not arise upon the mere demand for same. Rather, one seeking them must first make "a plausible showing to the trial court, through sworn evidence or agreed facts, that [the records contain] . . . material exculpatory evidence that would create a probability of a different outcome." Proctor v. State, 319 S.W.3d 175, 184 (Tex. App.-Houston [1st Dist.] 2010 pet. dism'd). Appellant provided the trial court neither "sworn evidence" nor "agreed facts" suggesting that information in the records would create such a probability. He provided only surmise and, therefore, failed to trigger any obligation of the trial court to either obtain or peruse the crime-stopper records.

Issue Three-Admission of Cell Phone Evidence

Through his third issue, appellant contends the trial court reversibly erred when it denied his motion to suppress evidence of real-time cell-site location data used to determine his situs prior to arrest. The data consisted of approximately eight cell phone pings over a two-hour period. Allegedly, a warrant should have issued to justify the pinging. Failing to obtain one violated his Fourth Amendment rights as well as those under section 9 of the Texas Constitution and article 38.23 of the Texas Code of Criminal Procedure, said appellant.^[1] We overrule the issue.

The threshold question is whether a particular government action constitutes a "search" or "seizure." Sims v. State, 569 S.W.3d 634, 643 (Tex. Crim. App. 2019). When the activity involves tracking one through their cell phone, whether it constitutes a search or seizure turns on the quantum of data obtained. That is, it depends on whether the government searched or seized "'enough'" information to indicate it transgressed upon a legitimate expectation of privacy. Id. at 645. Moreover, no bright-line rule exists to determine this. Id. Rather, the matter "must be decided on a case-by-case basis." Id. at 646. Yet, the Court of Criminal Appeals did provide a guideline in Sims. It appeared within its holding that "[a]ppellant did not have a legitimate expectation of privacy in his physical movements or his location as reflected in the less than three hours of real-time CSLI records accessed by police by pinging his phone less than five times." Id.

Here, appellant was found on a public road. Furthermore, the time period during which the pings transpired was much shorter than that in Sims. It did not occur over multiple days which was of concern in other cases. See e.g., Holder v. State, 595 S.W.3d 691, 703-04 (Tex. Crim. App. 2020) (noting that "the third-party doctrine alone cannot defeat a person's expectation of privacy in at least 23 days of historical" cell phone data). Relatively few pings over a short duration, like those in Sims, minimize the risk of revealing the "'privacies of [appellant's] life,'" which could give rise to an infringement on a legitimate expectation of privacy. Id. Given this, we follow the legal and factual guidance of Sims. That leads us to conclude that the trial court could well have found appellant lacked a legitimate expectation of privacy under the circumstances at bar. Thus, we cannot say its decision to forego suppressing the evidence resulting from the police tracking his movement via his cell phone constituted error under either the United States or Texas Constitutions. See State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019) (holding that the decision to grant or deny the suppression of evidence is reviewed under a bifurcated standard of review such that fact findings are reviewed for an abuse of discretion and applications of law are reviewed de novo); see Holder v. State, 595 S.W.3d at 702-04 (applying the Fourth Amendment and section 9 of the Texas Constitution similarly).

Issue Four-Evidence of a Text Message

By his fourth issue, appellant argues that the trial court erred when it overruled his Texas Rule of Evidence 403 objection. The objection concerned the admission of text messages sent to a juror through appellant's arrangement. The messages were sent after the State had rested but before the jury adjourned to deliberate guilt. The trial court found the messages relevant as evidence of appellant's consciousness of guilt. Then, it allowed the State to reopen its case for the purpose of admitting evidence of the texts and the circumstances surrounding their delivery to the juror.

The standard of review is abused discretion, as explained in Martinez v. State, 327 S.W.3d 727, 736-37 (Tex Crim. App. 2010) (involving an objection founded on Rule 403). We apply it here.

Next Texas Rule of Evidence 403 allows the trial court to exclude relevant evidence "if its probative value is substantially outweighed by a danger of . . . unfair prejudice . . . ." Tex. R. Evid. 403; State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Determining that involves balancing various factors. They include: 1) the inherent probative force of the evidence; 2) the proponent's need for that particular evidence; 3) the tendency, if any, of the evidence to suggest a decision on an improper basis; 4) the tendency, if any, of the evidence to confuse or distract the jury from the main issues; 5) the tendency, if any, of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence; and 6) the...