Ford v. State (444 S.W.3d 171, 2014)

OPINION

Opinion by:

MARIALYN BARNARD, Justice.

A jury found appellant Jon Thomas Ford guilty of the offense of murder. Based on the jury’s recommendation, the trial court sentenced him to forty years’ imprisonment. Ford raises eighteen points of error on appeal, asking this court to reverse his convictions. We affirm the trial court’s judgment.

Background

On December 31, 2008, Dana Clair Edwards attended a New Year’s Eve party with her friends Melissa Federspill and Alan Tarver at the home of a mutual friend. Edwards’s ex-boyfriend, Jon Thomas Ford, and other guests also attended the party. Edwards left the party after midnight and was seen walking her dog by a neighbor between 12:30 a.m. and 1:00 a.m. on January 1, 2009. Edwards’s body was later discovered by her parents . in the early hours of January 2, 2009. She was found lying face down on her bathroom floor with a white, blood-soaked towel covering her head. Although the autopsy revealed lacerations and blunt force trauma to her head, the cause of death was determined to be strangulation by ligature sometime between the early morning hours and noon of January 1, 2009. After an investigation, Ford was arrested and charged with murdering Edwards.

Although Ford was at the same New Year’s Eve party as Edwards, he did not stay until midnight to celebrate the new year. Ford left the party early because, according to testimony, he was offended by a comment made by Federspill during a group card game regarding his and Tar-ver’s resistance toward marriage. According to Federspill, the subject of marriage “was one of the sticky spots for [Ford] and Dana Clair” during their dating relationship. When Tarver asked later in the evening why Ford left early, Ford responded by text message: “No longer fun.”

According to Ford, he went straight home after the party and was asleep before midnight. The State presented evidence suggesting this was no.t true. At trial, the State presented circumstantial evidence linking Ford to the murder, including: (1) the testimony of Ford’s and Edwards’s mutual friends, Federspill and Tarver, that Ford’s SUV was not parked in his home’s driveway after the New Year’s Eve party; (2) historical cell phone data reflecting activity on Ford’s phone in the vicinity of Edwards’s condominium around the time of the murder; (8) pictures from a bank’s ATM camera depicting a white SUV similar to Ford’s and an unidentified figure entering Edwards’s condominium complex around the time of the murder; and (4) Ford’s DNA on the bloody towel covering Edwards’s face.

After considering the evidence above, as well as other testimony and evidence presented at trial, the jury found Ford guilty of the offense of murder. The trial court sentenced Ford to forty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. After the trial court denied his motion for new trial, Ford perfected this appeal.

Analysis

On appeal, Ford raises eighteen points of error, contending: (1) the evidence is legally insufficient to support his murder conviction; (2) the trial court abused its discretion when it denied his motion for new trial, which was based on insufficient evidence, newly discovered evidence, and the selection of an allegedly partial juror; (3) the trial court improperly responded to a jury note concerning the testimony of cell tower expert Kenneth Doll “regarding the possibility of a cell phone connection between tower SX 8155 (Gallery Court) & •the residence at 333 Rosemary Ave”; (4) the trial court erred by failing to suppress historical cell phone records obtained from AT & T and used by the State to suggest Ford’s proximity to Edwards’s residence at the time of her murder; (5) the'affidavits used to obtain the warrants to search Ford’s home, vehicle, and obtain his DNA contained materially false statements and omissions; (6) the trial court improperly admitted into evidence a metal three-hole punch and cordless electric drill charge cord; (7) the State engaged in improper jury argument by calling Ford a liar during opening statements, allegedly shifting the burden of proof during closing argument, and commenting on Ford’s failure to testify; (8) the trial court erroneously denied Ford’s oral request for a continuance during trial; (9) the trial court erred by denying Ford’s motion for independent examination of DNA evidence under Texas Code of Criminal Procedure article 39.14(a); and (10) the trial court erred by excluding “alternate perpetrator” evidence regarding a break-in at Edwards’s parent’s ranch house the day before the murder.

Sufficiency of the Evidence

In his first point of error, Ford contends the evidence is insufficient to support his murder conviction. When reviewing the sufficiency of the evidence in a criminal case, we apply the Supreme Court’s legal sufficiency standard as set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010). Applying the Jackson standard, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Carrizales v. State, 414 S.W.3d 787, 742 (Tex.Crim.App.2018) (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781). We are permitted to consider all of the evidence in the record, whether admissible or inadmissible, when making our sufficiency determination. Powell v. State, 194 S.W.3d 503, 507 (Tex.Crim.App.2006); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999); Green v. State, 893 S.W.2d 536, 540 (Tex.Crim.App.1995) (“If the sufficiency of the evidence is challenged following a jury trial, appellate courts consider all of the evidence presented whether properly or improperly admitted.”). In circumstances where the record supports conflicting inferences, we must presume the factfinder resolved any conflicts in favor of the verdict and defer to that determination. Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App.2012); see Jackson, 443 U.S. at 318, 99 S.Ct. 2781. This presumption includes conflicting inferences from circumstantial evidence. Mayberry v. State, 351 S.W.3d 507, 509 (Tex.App.-San Antonio 2011, pet. refd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007)). Further, we may not re-evaluate the weight and credibility of the evidence nor may we substitute our judgment for that of the factfin-der. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007).

As mentioned above, Ford was convicted of the offense of murder. In Texas, a person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (West 2011). Even for an offense as serious as murder, “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.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). In cases where the available evidence is circumstantial in nature, “it is not necessary that every fact and circumstance ‘point directly and independently to the defendant’s guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances.’” Temple v. State, 390 S.W.3d 341, 359-60 (Tex.Crim.App.1993) (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993)).

Here, the State relied upon circumstantial evidence to convict Ford. Specifically, the State relied upon the testimony of Federspill and Tarver, cell phone records, ATM photographs, and DNA evidence to rebut Ford’s alibi and connect him to the murder.

According to the State’s theory of the case, the chain of events that ultimately resulted in Edwards’s murder began when Ford became upset at the New Year’s Eve party. While guests were playing a card game at the party, Federspill made a comment to Ford and Tarver about their resistance or reluctance with regard to “marriage.” Ford did not appreciate the comment. According to Federspill, Ford approached her after the comment, told her he did not appreciate it, and left the party shortly thereafter. Additionally, after Tarver texted Ford at 11:31 p.m. about his abrupt departure from the party, Ford responded, “No longer fun.” Federspill explained that Edwards broke up with Ford because “[Edwards] mentioned to me that she was unhappy in the relationship, looking for her life to progress forward in terms of marriage and/or motherhood ... She wanted to have kids and get married.”

Despite Ford’s claim that he went straight home and went to bed, both Tar-ver and Federspill testified they did not see Ford’s white Chevy Tahoe parked in his driveway after midnight. The pah-drove to Ford’s home to deliver a cooler Ford left behind at the party. Although Ford was known to occasionally park in a church parking lot directly behind his home, Tarver testified he was “looking for it right there and I don’t see it.” Ford counters that Tarver did not see the Tahoe because it was parked in a dark corner of the church parking lot instead of its normal place directly behind his house. However plausible, we must presume the jury resolved this conflict in favor of the verdict and defer to that determination. See Wise, 364 S.W.3d at 903.

After using the testimony of Tarver and Federspill to prove Ford was not at home around the time of the murder as he claimed, the State turned to historical cell phone data obtained from Ford’s cellular provider, AT & T, to determine where he in fact was in the early hours of January 1, 2009. The information revealed in the records includes: the date and time of a cellular device’s usage; the type of usage; the number calling and called during the usage; the duration of the usage; and the exact location (latitude and longitude coordinates) of the tower that processed the usage of the cellular device. According to the State’s historical cell data expert Kenneth Doll, an employee of AT & T, this data is collected even from passive activity on the cellular device — including letting a call go to voicemail by not answering it— because even with passive activity:

[T]he device acknowledged — the device acknowledged to the network that, yes, here I am, in this service area ... If your phone rings, if the phone rings, it is in communication with our network and it has set up a communication path with the site that it is best server [sic] with.

(emphasis added). As a result of collecting a cellular device’s active and passive activity, Doll testified he is able to tell where a phone is located based upon the data gathered from cell towers. Regarding this case specifically and the tower servicing the area in proximity to Edwards’s condo — referred to as “Gallery Court” at trial — Doll testified that “[i]f you were at the Gallery Court location and you had activity on your cellular device, this would be the sector it would be on.” Additionally, Doll stated it would not have been possible for Ford’s phone to show activity in the Gallery Court sector from his home address “because you don’t have line of sight to [the Gallery Court Tower] ... [s]o your device won’t see that tower and that tower won’t see your device.”

At oral argument, Ford suggested Doll actually testified the tower reflected in the historical record is the one closest to the phone placing the call, instead of Ford’s phone that was receiving the calls and text messages. In support of this argument, Ford directed the court to the record and our decision in Wilson v. State where historical cell phone records were used to track the movements of a murderer on the day of his crime. See 195 S.W.3d 193, 196 (Tex.App.-San Antonio 2006, no pet.). The record, despite citation to it by Ford, does not support this assertion. Even if the record could be construed as lending some passing support to the proposition advanced by Ford at oral argument, it would conflict with other portions of Doll’s testimony. In the event of an evidentiary conflict, we must presume the jury resolved the matter in favor of the verdict and defer to that resolution. See id. Further, our decision in Wilson does not support Ford’s argument. In Wilson, we held the trial court did not abuse its discretion by admitting the testimony of an expert regarding historical cell phone records over a challenge to the expert’s qualifications. 195 S.W.3d at 202. In short, Wilson, despite Ford’s contention at oral argument, is irrelevant here. See id. at 201-02.

Despite Ford’s novel contentions at oral argument, the historical cell phone data, as interpreted by the testimony of Doll at trial, supports the conclusion that Ford was not at his home on the morning of the murder as he claimed. Rather, the historical cell data reveals two communications, a missed call from Tarver at 11:45 p.m. and a text from Tarver at 1:19 a.m., both of which place Ford in the service area of Edwards’s condo on the morning of her murder. In addition to this historical cell data placing Ford’s phone, and presumably Ford himself, in close proximity to the crime scene at the relevant times, the State also presented pictures from an ATM camera that appear to show Ford’s vehicle, and possibly Ford, entering Edwards’s condominium complex.

Before introducing the recovered ATM camera photos, the State first admitted into evidence a photo of Ford’s white Chevy Tahoe. The photo shows Ford’s 2004 white Chevy Tahoe had black roof rails, which are generally used to tie down luggage, and a horizontal black stripe down the lower quarter of the Tahoe’s side. Although these identifying features are certainly not unique to Ford’s vehicle, the features are visible in the grainy ATM photographs and a reasonable juror could determine a vehicle similar to Ford’s is depicted.

Even though the vehicle in the ATM photos was never conclusively identified as belonging to Ford, the State introduced ATM photos depicting a vehicle that is similar in appearance to Ford’s white Chevy Tahoe (i.e. exhibiting the roof rails and/or black horizontal stripe) entering and exiting Edwards’s condo complex around the time of the murder. In addition to photos of the vehicle, the State also introduced photos depicting a figure— claimed by the State to be Ford based on the figure’s clothing, which allegedly matched what Ford wore that night — entering and exiting Edwards’s condominium complex. The photos were presented to the jury as follows:

1.) Vehicle entering Edwards’s condominium complex from the north at 11:24 p.m. on December 31, 2008.

2.) Vehicle exiting Edwards’s condominium complex to the south at 11:26 p.m. on December 31, 2008.

3.) Vehicle driving past Edwards’s condominium complex from the south at 11:36 p.m. on December 31, 2008.

4.) Vehicle entering Edwards’s condominium complex from the north at 11:37 p.m. on December 31, 2008.

5.) Vehicle exiting Edwards’s condominium complex to the north at 11:39 p.m. on December 31, 2008.

6.) Figure allegedly entering Edwards’s condominium complex from the north at 11:42 p.m. on December 31, 2008.

7.) Vehicle believed to be Edwards’s red Chevy Tahoe entering the complex from the north at 12:47 a.m. on January 1, 2009.

8.) Figure allegedly exiting Edwards’s condominium complex to the north at 2:02 a.m. on January 1, 2009.

9.) Vehicle passing Edwards’s condominium complex heading south at 2:07 a.m. on January 1, 2009.

10.) Vehicle entering Edwards’s condominium complex from the south at 3:12 a.m. on January 1, 2009. This photo only reveals the vehicle’s back end and lit taillights. It does not depict a vehicle possessing similar identifying characteristics to Ford’s, i.e. the roof rails and black side stripe are not visible.

11.) Vehicle exiting Edwards’s condominium complex to the south at 3:16 a.m. on January 1, 2009. Unlike the other photos, the vehicle exiting Edwards’s complex does not have its headlights on.

The State argued to, the jury that this timeline of events, based on the ATM photos, is evidence of Ford’s activities on the night of Edwards’s murder. Although Ford countered the State’s timeline by introducing ATM photographs, of other SUVs driving past the entrance to Edwards’s condominium complex at times relevant to the case, we presume the jury resolved any of the conflicts in favor of the verdict and must defer to that determination. See Wise, 364 S.W.3d at 903.

The last piece of evidence the State used to link Ford to Edwards’s murder was the identification of his DNA on the white towel found covering her face at the murder scene. The State’s forensic expert, Robert Sailors, testified Ford was the source of human male DNA extracted from samples of the towel removed from Edwards’s face. Although Ford presented numerous attacks on the weight and credibility of this evidence (e.g., Ford’s DNA on the towel is unremarkable as a former boyfriend and guest of Edwards’s condo; the towel is contaminated evidence because Sailor’s DNA was also identified on it), we must once against presume the jury resolved any evidentiary conflicts in favor of the verdict and defer to that determination. See Wise, 364 S.W.3d at 903.

Taken together, the State introduced evidence strongly suggesting Ford was not home at the time of Edwards’s murder as he said, but rather was at the scene of the crime. Specifically, the State used the testimony of Federspill and Tarver to show Ford’s ear was not at home when it should have been, cell phone records to prove he was in the vicinity of Edwards’s .condominium at times relevant to her murder, ATM photos showing a vehicle similar to Ford’s entering and exiting the condominium complex around the time of the murder, and DNA evidence linking Ford with the towel covering Edwards’s face. Although Ford has diligently argued the evidence presented by the State is neither perfect nor without conflict, our standard of review for the sufficiency of the evidence does not weigh in Ford’s favor because we must presume conflicts are resolved in favor of the verdict. See id.

Having reviewed the récord in the light most favorable to the verdict, we hold the jury rationally could have found Ford guilty of murder beyond a reasonable doubt. See Carrizales, 414 S.W.3d at 742. The combined and cumulative force of the incriminating circumstances presented by the State point toward Ford’s guilt. See Temple, 390 S.W.3d at 359-60. Accordingly, we overrule Ford’s first point of error.

Ford counters this conclusion by arguing there is a hole in the State’s storyline that is supported by the very cell phone evidence used to convict him, evidence that renders the circumstantial evidence presented by the State insufficient. Ford points out the cell phone records indicate he was in the proximity of Olmos Dam at 1:32 a.m. on the morning of Edwards’s murder because his cell phone recorded activity from a tower in that area. Those same cell records indicate that only 13 minutes earlier, at 1:19 a.m., Ford was in the vicinity of Edwards’s condo a few miles away. Problematically, the ATM photos used by the State do not show Ford leaving in the same manner as the State alleges he entered the complex, i.e., walking in the front entrance. The State had no explanation for this apparent conflict and admitted as much during its closing: “[w]ill I ever be able to tell you precisely how the Defendant got over the [Gallery Court] wall or why the Defendant got over the wall? No. No.” However, as stated above, we must presume the jury resolved this conflict in the evidence in favor of the verdict and defer to that determination, as we have already done on other occasions. See Wise, 364 S.W.3d at 903.

In a further attack on the sufficiency of the evidence, Ford directs the court, for the first time in its reply brief, to a Court of Criminal Appeals decision where the court reviewed a set of circumstantial facts and determined that “[wjhile these facts together might create suspicion, ... they do not add up to probable cause that appellant committed the murders.” Hankins v. State, 132 S.W.3d 380, 389 (Tex.Crim.App.2004). Ford argues that if the Court of Criminal Appeals could not find probable cause under the facts in Hankins, then this court would err to find the present facts sufficient to support Ford’s guilt. This argument is not persuasive as the Hankins case is completely distinguishable. Hankins involved a determination of the existence of probable cause, a standard inapplicable to the sufficiency review we apply here. Compare id. (determining existence of probable cause), with Carrizales, 414 S.W.3d at 742 (setting out standard of review for sufficiency of evidence).

Motion for New Trial

In his second point of error, Ford contends the trial court abused its discretion when it denied his motion for new trial. Specifically, Ford argues the trial court erred because: (1) the evidence was insufficient to establish Ford’s guilt; (2) newly discovered evidence regarding the historical cell phone data and the ATM pictures tends to exculpate Ford; and (3) it was discovered that a juror allegedly lied about his knowledge of cell towers on his juror selection form.

We review a trial court’s ruling on a motion for new trial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App.2007).