Stocker v. State

656 S.W.3d 887

Jamin Kidron STOCKER, Appellant

v.The STATE of Texas, Appellee

NO. 14-21-00412-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 8, 2022

Winifred Akins Pastorini, Houston, for Appellant.

Jessica Alane Caird, Cory Stott, Kim K. Ogg, Houston, for Appellee.

Panel consists of Justices Jewell, Bourliot, and Zimmerer.

Kevin Jewell, Justice

Appellant Jamin Kidron Stocker appeals his conviction for capital murder. Among other issues, he complains of the sufficiency of the evidence to support his conviction, as well as the trial court's denial of his motion to suppress evidence obtained from his cell phone and his wireless carrier.

We hold that legally sufficient evidence supports the jury's guilty verdict. However, we agree with appellant that the trial court erred in refusing to suppress evidence obtained from his cell phone. Although the State secured the evidence pursuant to a warrant, we conclude that the supporting affidavits failed to articulate sufficient probable cause. Because we also conclude that the erroneous admission harmed appellant, we reverse the trial court's judgment and remand for a new trial. We overrule appellant's remaining issues.

Background

In August 2017, Brent Tapp was living in a homeless encampment near downtown Houston. Late at night on August 21, Tapp was shot in the leg. The shot came from the balcony of a nearby townhouse. Tapp and his friend, Trampus Edwards, told responding law enforcement officers that they knew the shooter and that he lived in the townhouse. Tapp and Edwards did not know the shooter's name but identified the balcony of the unit in which they believed he resided. A witness at trial estimated that the townhouse was less than fifty yards away from where Tapp was shot.

The officers conducted a computerized search for the townhouse's address, and the result showed that appellant's name was "associated" with the address.¹ Police showed Tapp a photo of appellant, and Tapp confirmed that appellant was the man who shot him.

The police obtained and attempted to execute an arrest warrant for appellant. An officer called appellant, who said that he was not present at the townhouse. Officers entered the unit, found no one there, and seized a large number of guns and ammunition. Police did not arrest appellant at that time because they could not locate him.

A few months later, on November 7, 2017, police again responded to a call originating from the homeless camp. Tapp had been shot three times and died as a result of his injuries. The medical examiner recovered a bullet from Tapp's body, and police matched it to a gun known to belong to appellant.

Appellant was arrested in January 2018. A Harris County grand jury indicted him on a charge of capital murder. Appellant pleaded not guilty. Prior to trial, appellant moved to suppress evidence recovered from his cell phone, which police seized during his arrest, as well as cell site location information obtained from appellant's wireless carrier, T-Mobile, which showed appellant's general movements from April 2015 to January 2018. After a hearing, the trial court denied appellant's motions to suppress. A jury found appellant guilty of capital murder as charged in the indictment. The State did not seek the death penalty, and the trial court sentenced appellant to life imprisonment.

Analysis

Appellant presents six issues for our review:

1. The trial court erred in denying appellant's motion to suppress evidence seized, along with the fruits of that evidence, from his residence without a search warrant.

2. The trial court erred in denying appellant's motion to suppress the Samsung cell phone.

3. The trial court erred in overruling appellant's motion to suppress evidence obtained from the Samsung cell phone.

4. The trial court erred in denying appellant's motion to suppress T-Mobile carrier information from appellant's Samsung cell phone.

5. The evidence is legally insufficient to support appellant's conviction for capital murder.

6. The trial court abused its discretion in admitting substantial evidence of the extraneous aggravated assault case over objection.

A. Sufficiency of the Evidence

We begin with appellant's fifth issue, in which he challenges the sufficiency of the evidence supporting the jury's verdict. We address this issue first because, if appellant is correct, he would be entitled to the greatest relief. See Finley v. State , 529 S.W.3d 198, 202 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd).

1. Standard of review and applicable law

Appellant was charged with committing the offense of capital murder. A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code § 19.02(b)(1). A person commits the offense of capital murder if the person commits murder as defined under section 19.02(b)(1) and, relevant here, the person intentionally commits the murder in the course of committing or attempting to commit obstruction or retaliation. Id. § 19.03(a)(2). A person commits the offense of obstruction or retaliation if the person intentionally or knowingly harms or threatens to harm another by an unlawful act:

(1) in retaliation for or on account of the service or status of another as a:

(A) public servant, witness, prospective witness, or informant; or

(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or

(2) to prevent or delay the service of another as a:

(A) public servant, witness, prospective witness, or informant; or

(B) person who has reported or who the actor knows intends to report the occurrence of a crime.

Id. § 36.06(a). The State must prove beyond a reasonable doubt that the defendant is the person who committed the charged offense. Johnson v. State , 673 S.W.2d 190, 196 (Tex. Crim. App. 1984) ; Bradley v. State , 359 S.W.3d 912, 916 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd).

In determining whether the evidence is legally sufficient to support a conviction, "we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ); see also Braughton v. State , 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018). We presume that the jury resolved conflicting inferences in favor of the verdict, and we defer to its determination of the evidentiary weight and witness credibility. See Braughton , 569 S.W.3d at 608 ; Criff v. State , 438 S.W.3d 134, 136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). The scope of our review includes all the evidence admitted at trial, whether it was properly or improperly admitted. See Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. See Balderas v. State , 517 S.W.3d 756, 766 (Tex. Crim. App. 2016). 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. See Hooper , 214 S.W.3d at 13.

2. Legally sufficient evidence supports the jury's verdict.

We need only address the sufficiency of the evidence as it pertains to the identity element of the State's case because appellant does not challenge any other element.² See, e.g., Murray v. State , 457 S.W.3d 446, 448 n.1 (Tex. Crim. App. 2015).

On the night of the August shooting, Edwards heard Tapp yelling, "I been shot, I been shot." Edwards asked Tapp who shot him, and Tapp said, "the guy in the townhouse." Edwards did not know who Tapp meant, so he asked Tapp "to show [him]." Tapp pointed to the second-floor balcony of a nearby townhouse. Tapp described the shooter to Edwards, who recognized Tapp's description. Edwards did not know the shooter's name, but he "always see him coming and going. That's how [Edwards] knew who [Tapp] was talking about." At trial, Edwards identified appellant as the man he had seen "coming and going."

Edwards called 911 to report Tapp's injury because Tapp needed an ambulance. Houston Police Department ("HPD") officers, Sergeant Samuel Harris and Officer Kerry Clopton, were dispatched to the scene. Sergeant Harris was unsure if there was an "active shooter" inside the townhouse, so another police unit set up a perimeter to secure the area. Sergeant Harris contacted the HPD Command Center and gave them the suspected shooter's address. The center ran a search and "gave [Sergeant Harris] a name," and he was then able to obtain appellant's driver's license photograph. Sergeant Harris showed the photograph to Tapp, who "was adamant that's [ ] the person that shot him."

Officer Clopton obtained an arrest warrant for appellant based on a charge of aggravated assault with a deadly weapon. A SWAT unit entered the townhouse but did not find anyone inside. Sergeant Harris then entered and took into evidence at least five firearms, including "a rifle with a homemade silencer put on it with a scope on it," and hundreds of unfired ammunition rounds. Sergeant Harris also took into evidence appellant's driver's license and passport.

Ryan Hookano was the firearms examiner in the firearms section of the Houston Forensic Science Center. Hookano examined two bullet fragments that were recovered from the hospital where Tapp received treatment after the August shooting. According to Hookano, they were consistent with being fired from a 22-caliber gun. The rifle with the homemade silencer that was recovered from the townhouse was a 22-caliber semi-automatic rifle. However, Hookano could not determine conclusively whether the fragments had been fired from that specific rifle.

After the shooting, appellant left Texas and traveled to Georgia, where ...