No.

04-12-00317-CR

COURT OF APPEALS
IN THE FOURTH JUDICIAL DISTRICT
SAN ANTONIO, TEXAS



JON THOMAS FORD,
Appellant, Appeal from the
186
th
Judicial District Court
versus of Bexar County, Texas
Cause No. 2010-CR-7741
THE STATE OF TEXAS,
Appellee.



REPLY BRIEF FOR APPELLANT

ORAL ARGUMENT REQUESTED
[Scheduled June 24, 2014]





CYNTHIA E. ORR
Bar No. 15313350
GOLDSTEIN, GOLDSTEIN & HILLEY
310 S. St. Marys St.
29
th
Floor Tower Life Building
San Antonio, Texas 78205
210-226-1463
210-226-8367 facsimile
E-mail: whitecollarlaw@gmail.com

ACCEPTED
04-12-00317-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
5/12/2014 4:47:16 PM
KEITH HOTTLE
CLERK
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
05/12/2014 4:47:16 PM
KEITH E. HOTTLE
Clerk





ii
TABLE OF CONTENTS

Table of Authorities ................................................................................................. iii

Certificate of Compliance ........................................................................................ 28

Certificate of Service ............................................................................................... 29


































iii
TABLE OF AUTHORITIES

Cases:

Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011) ............................... 21

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................ 1

Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004) ..................................... 14

Franks v. Delaware, 442 U.S. 928, 99 S. Ct. 2871, 61 L.Ed.2d 304 (1979) ........... 22

Gloede v. State, 328 S.W.3d 669 (Tex. App.2010, no pet.) ................................ 24

Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004) ............................ 5, 6, 22

In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir.
2013) .................................................................................................................. 17, 18

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) .............. 1

Jimenez v. State, 32 S.W.3d 233 (Tex. Crim. App. 2000) ...................................... 23

Jones v. State, 706 S.W.2d 664, 66668 (Tex. Crim. App. 1986) .......................... 20

Katz v. United States, 389 U.S. 347 (1967) ............................................................. 16

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ................................... 16

Lee v. Kemna, 534 U.S. 362 (2002) ........................................................................ 27

Martinez v. State, No. 040500437CR, 2006 WL 3017133 (Tex. App.San
Antonio 2006, no pet. hist.) ..................................................................................... 20

Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993) ............................... 18






iv
United States v. Jones, 132 S.Ct. 945 (2012) .................................................... 16, 20

Wiley v. State, 74 S.W.3d 399 (Tex. Crim. App. 2002) .......................................... 26

Young v. State, 137 S.W.3d 65 (Tex. Crim. App. 2004) ......................................... 21


Rules and Statutes:

Art. I, Section 9 of the Texas Constitution .............................................................. 19

Art. 18.21 of the Texas Code of Criminal Procedure .............................................. 16

Art. 36.19 of the Texas Code of Criminal Procedure .............................................. 24

Art. 38.23 of the Texas Code of Criminal Procedure .............................................. 17

Rule 33.1(a)(1)(A) of the Texas Rules of Appellate Procedure. ............................. 16

Rule 403 of the Texas Rules of Evidence ............................................................... 26

First Amendment to the U.S. Constitution .............................................................. 17

Fourth Amendment to the U.S. Constitution ..................................................... 17, 19

Fourteenth Amendment to the U.S. Constitution .................................................... 17

Freedom of Association Clause of the Constitution of the Bill of Rights ............... 16








1


No. 04-12-00317-CR

COURT OF APPEALS
IN THE FOURTH JUDICIAL DISTRICT
SAN ANTONIO, TEXAS


JON THOMAS FORD,
Appellant, Appeal from the
186
th
Judicial District Court
versus of Bexar County, Texas
Cause No. 2010-CR-7741
THE STATE OF TEXAS,
Appellee.


REPLY BRIEF FOR APPELLANT

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS, FOURTH
JUDICIAL DISTRICT:

The State must produce sufficient evidence to justify a rational trier of the
facts to find guilt beyond a reasonable doubt viewing the evidence in a light most
favorable to the verdict. Jackson v. Virginia. 443 U.S. 307, 312313 (1979). This
is a test of adequacy, not mere quantity. Brooks v. State, 323 S.W.3d 893, 917
(Tex. Crim. App. 2010). Evidence either is or is not legally sufficient to support a
conviction. Id. at 913 [Emphasis added].
The States recitation of facts is not supported. The State asserts that there
was no other reasonable explanation, except guilt, for Fords DNA on a towel
found covering DEs face. But Fords DNA would reasonably be in DEs home





2
where he stayed a few years and where he had been 10 days prior to her death
7R90. On that occasion, he helped her to bed, she was ill in her bathroom, and he
cleaned up after her and her dogs. He also got aspirin and water for her. 7R90,
11R91-93 These tasks require him using the bathrooms, sinks and towels. Thus,
the presence of Fords DNA is not consequential. It is not time stamp DNA; that
is DNA under DEs fingernails. It was on the edge of a towel collected from the
base of the toilet. CR564, 11R217, 15R58 If Ford ever used that toilet, touched
that towel [15R60] cleaning up after DE and her dogs, if DEs body with the towel
was dragged collecting Fords sloughed off skin, or if DNA was deposited in the
wash, his DNA is there innocently. There is no way these tests can substantiate
that the DNA on the towel is even connected to the murder. 16R228
Fords DNA was not found on the towel until the States DNA expert, found
his own DNA on the towel in greater quantities. 15R103 It calls into question
Fords DNA being present. Or, if we were to take seriously the States suggestion,
that there is no such thing as touch DNA, then Mr. Sailors
1
is the better suspect.
For him, there is no explanation for his DNA in DEs home.
The State also asserts that DE was murdered early morning of 2009. But,
the prevailing evidence was that the time of her death was later in the day
2
after she

1 The States witness testified the DNA could have gotten there from handling the towel. 15R61
2
The medical examiner testified that DE most likely died around noon. 14R150





3
had awoken [DX35], taken out her night guard [14R48], eaten breakfast, fed and
taken the dogs out, gotten the bottoms of her feet dirty [DX41], read the
newspaper
3
, and was taking her morning antibiotic pill. DX36
DE was last seen alive at 1 a.m. [9R40] by Jordon Hasslocker, the person
who is walking into and out of the Gallery Court holding a light emanating tablet
[9R37, 39] the state claims is Ford. Her parents did not find DEs body until
January 2, 2009. 9R130-132
DE did not attend the party at Roger Graggs home. 16R74 It is when Ford
and Tarver are both at Graggs party on the south most point in the States cell
tower map [SX22], that the records indicate Tarvers text to Ford there was
handled by sector one of what the State called the Gallery Court tower. SX11, pg 1
This tower is on top of the Carlyle. 1CR490 At no point in this evening was Ford
in sector one of that tower, and certainly not while at Graggs party. 8R121 Thus,
the states evidence proves that any tower in the 3.71 mile area involved here did
handle calls; texts and data for phones in the area.
Ford left a later party, that DE attended when others did. [7R192] He waived
goodbye as he left id., but Tarver was in the bathroom. Thereafter, Tarver drove
by Fords to return his cooler. He did not telephone him, knock on his door, or

3
A newspaper dated January 1, 2009 was open and on her night stand. The paper delivery
person said that it could have been delivered on the 31
st
in the evening, but did not recall. 11R40,
43





4
even stop at his house. Not seeing his car in the driveway, Tarver turned right,
through the church parking lot, past bushes and trees that blocked
4
the lights of his
car from illuminating the left corner of the lot where Ford parked. He did not pivot
his head backward to see it since neither he not Federspill were looking for his car.
7R65
The next morning, at 9am, they were still in bed and Federspill was still
asleep. SX9,18 8R59 Though Ford had planned on meeting them for brunch,
Tarver explained it was too early for them. Ford, who had not drunk very much
and was well rested and raking leaves. He texted Tarver and drove to re-join his
parents.
Immediately upon hearing of DEs death in a 2am phone call from DEs
mother, he and his parents drove to Stonewall, Texas to express their condolences.
SXA1 DEs mom complained that Ford did not ask her questions about how DE
died. She had already told him in her phone call that she had been killed. After
expressing his condolences, he joined Tarver and Federspill to be comforted. The
next day he voluntarily spoke to police at his home, and gave a recorded interview
at the station. SXA1 He wore a short sleeve shirt with an open collar. The

4
The trees and bushes blocking the view from the road are pictured in SX10, where the
photographer is standing in the grass and aiming back toward the alleyway. See also SX12 A
car going the direction Mr. Tarver was going would not have illuminated the area depicted.





5
detective noticed nothing remarkable on his body or hands.
5
A few weeks later,
Ford again told police at his parents home, that he still had his NYE clothing.
However, police did not ask for or retrieve them: not searching Fords home until a
year later.
In Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004), the court
looked at evidence that included:
(1) three dead bodies were discovered in a mobile home; (2) the
victims were appellant's wife and her two children; (3) appellant had
recently been released from jail and was living with the victims in the
mobile home where the bodies were found; (4) appellant's wife's car
was missing from the scene; (5) the victims were killed with a gun
and appellant was in possession of a gun; (6) an unsigned note stating
I am guilty of murder, incest, hatred, fraud, theft, jealously [sic], and
envy was found inside the mobile home on an envelope addressed to
appellant; (7) appellant had previously assaulted another woman; (8)
appellant's wife's car was parked outside of his girlfriend's apartment;
(9) at 2 a.m., appellant asked his girlfriend to check to see if there was
anything unusual outside of her apartment; and (10) when approached
by officers outside of her apartment, appellant's girlfriend told the
officers that appellant was inside her apartment, that he was armed
with a pistol and had access to a rifle and another pistol, that he had
been staying with her for several days, and that he had been driving
his wife's car. Hankins v. State, 132 S.W.3d 380, 38889 (Tex. Crim.
App. 2004).

The Court held that while these facts together might create suspicionthey do
not add up to probable cause that appellant committed the murders. Hankins, 132
S.W.3d at 389. Here, the evidence does not even rise to the level of that presented

5
See also full body photos of Ford taken 1/9/09 DX 78-87.





6
in Hankins. The state claims that it:
placed Appellant at the scene of the murder at the time of the murder
by DNA, cell phone records, and security camera footage. While
none of these alone may have been sufficient to prove Appellants
guilt, their cumulative force did. Appellees Brief [AB] at 21

But cumulatively, the facts do not prove guilt, they do not even establish probable
cause. Both Ford and DE lived in Alamo Heights. They had previously ended
their romantic relationship and continued a close friendship. Ford was sad about
the breakup and wrote DE a letter in which he expressed that his heart is broken at
the thought of losing youThere is too much time, money, and effort invested in
this relationship to simply up and quit. You are the person I want to spend the rest
of my life with and raise a family. SX216 Ford was never known to lose his
temper and was not angry the night of DEs death. 18R63,74 Ford and DE had
been to the same party on NYE. Ford left the party, with others, and texted Tarver
at 11:31pm stating, No longer fun. The night of NYE, Fords phone utilized
towers located near his home at 333 Rosemary. All towers utilized were in the
Alamo Heights area.
The state lists six points of circumstantial evidence and claims that the
cumulative force of the evidence was sufficient to convict. The state concedes
that [t]here was conflicting testimony over some issues. AB at 24 But, the six
points upon which the state relies, are unsubstantiated by the evidence and an





7
attempt to shoe horn its theory into the meager information it had. Its theory and
the facts proven do not sustain the verdict.
1. The state writes that Ford was very upset shortly before the victims
murder over her breaking up with him. AB at 24 Ford and DE had recently
ended their romantic relationship and maintained a friendship. They still had the
same group of mutual friends. DE attended Fords fortieth birthday party. 8R50
They both attended a Christmas light viewing party, after which Ford helped DE
into her home. 8R52 They also attended the same NYE party. Ford sent DE a
letter expressing his heartache at the sudden termination of their relationship.
SX216 He continued to see her socially. This is consistent with acceptance, not
anger, especially not violent anger.
Ford has no history of violence, a docile character, and all who testified
agreed that he has no temper. In closing, the state acknowledged that he has no
temper and offered their own explanation:
[p]eople get upset. And if hes of the type that doesnt show that
very often, well, anger is a natural reaction, its a normal emotion, its
going to go somewhere. 18R74

Federspill testified that DE was looking for her life to progress forward in terms
of marriage and/or motherhood. 7R166 She also testified that Ford and DE
succeeded at remaining friends. 7R167 At the NYE party, during a word
association game, a card was pulled with the word marriage. Federspill pointed





8
at Ford and Tarver, with whom she was living, and said this one is for yall.
7R18990 According to Federspill [t]here was a lot of laughter and later Ford
told her that he didnt think that was funny at all. 7R190 Federspill also said
that Ford was the one who did not want to commit to DE. Thus, he was neither
obsessive nor possessive over her. Again, there is no mention of a temper tantrum
or outward signs of anger by Ford. In fact Federspill testified saying, I made a
fuss, and I took the spotlight. 7R18990 The evidence was that Ford had
successfully moved on and was friends with DE, not angry.
2. The state contends that phone records show Ford was not at home at the
time of the crime and his car was not seen by Tarver and Federspill. But the same
brief also concedes that signs used to determine time of death are consistent with
DE dying as late as noon. AB at 20 DE had no alcohol in her vitreous fluid, and
thus cannot have died so soon after drinking gin and tonic and champagne at the
party. 14R24,143 By supposing that the death occurred between 1-2am, January 1,
2009, the state shoe horned its theory of the crime into the facts it had.
Officer Carrion agreed that if the crime did not take place between 1-2am,
that Ford could not have been the perpetrator. 14R23 In fact, the states own
witness, Dr. Peacock testified that [i]n real life, you cannot set the time, the
exact time of death. 14R133 The states witness explained there are so many
variables and the factors used by the state are not very scientific at all. 14R133





9
Therefore, the state is not actually aware of the time DE died.
The state points to cell phone records to indicate that Ford was not home, but
was at DEs condo at the time of her murder. AB at 24 But, the state was not
able to prove that Ford was at her condo at 1-2am.
The state used grainy security camera footage from the bank located across
the street from the condo and the testimony of Ken Doll to say that Ford was at
Gallery Court Condos because his phone used the tower on the Carlyle
Condominiums at 7887 Broadway Street, between 11:24pm and 2:02am. It is not
possible to tell where a phone is located when serviced by a particular cell tower.
Doll agreed when asked, you cannot tell this jury that if the record shows that a
certain sector of a cell tower was pinged by a cell device, that that cell device was
in that sector beyond any argument, can you? Doll responded, No. 8R145 That
is because, depending on a number of variables, a different cell tower or a
different sector might service that activity? To which Doll responded, Yes.
8R145 So the state does not show that Ford was anywhere other than in bed in his
home. Using this same non-probative cell tower information, the state also
contends that Ford was in the vicinity of Olmos Dam, where the victims dogs
body was later found. AB at 24 His phone had used the Olmos tower in between
11:24pm and 2:02am. To fit its theory, the state had to contend that Ford left the
condos unseen and ran to the Olmos Dam to dispose of the dog, inexplicably





10
returning to the condo to retrieve objects that belonged there anyway; a three-hole
punch and a cordless drill charging cord.
In closing, the state argued, the phone records show he pinged at Gallery
Court at 1:19. And the phone records show he pinged down at the Olmos Dam at
approximately 1:32. So what do I know? I know that he, along with the phone
thats in his hands, was at Gallery Court at 1:19 and at Olmos Dam at 1:32.
18R21 The states theory rests upon the notion that a bloodied
6
Ford, who
weighed approximately 250 pounds, scaled an eight foot brick wall with a dead
dog in hand, and ran 2.5 miles in 13 minutes, in order to dispose of the dogs body.
According to the state, this run was through the upscale neighborhood of Alamo
Heights from 1:191:32 and was done through peoples backyards without being
seen or detected. According to the states theory, Ford then ran back to the condo,
scaled the wall once again, retrieved a three-hole punch and charger cord and then
left the condo.
7

3. The state relied upon poor quality bank security camera footage to suggest
that one of multiple white non-descript SUVs [8R70] was Fords and that he
entered DEs condo at 11:24pm and exited the condo, although he would know
that she was not home, since he just left the party, where she was. The state

6
DE bled profusely from her head, neck and hand. 14R176
7 One prosecutor suggests that even though he ostensibly had already disposed of the dog, he
was still carrying it out of the condos in a bag.





11
contends that Ford parked up the street from DEs condo and walked there to hide
and wait for DE. The person seen entering the condo cannot be identified. 8R71
The image is not of Ford and is consistent with Jordan Hasslocher, who lived in the
condominium, walked through the grounds at night, with his iPad in hand, and
made a trip to the HEB grocery store on foot that night. 9R3538 Hasslocher
knew Ford, knew Fords vehicle and never saw the vehicle or Ford in the condo
that night. 9R4546
Most interestingly, the state contends that Ford scaled the wall of the condo,
with the dog in hand and ran through the neighborhood at night to Olmos Dam,
instead of exiting the condo and using his car, presumably in order to avoid being
seen by the bank camera across the street. This part of the theory begs the
question, if the person walking in and out of Gallery Court was aware of the bank
security camera, why did he not choose to avoid being seen at all? Why did he
walk into and out of the condo, knowing he was on camera, but choose to scale the
wall and run through the neighborhood to avoid being seen by the camera?
Because otherwise the states theory is demonstrably wrong. No one leaves the
condo and goes to the Dam at 1:19am.
4. The state contends that Fords DNA was found on the towel in DEs
bathroom where her body was discovered and that the DNA could only have been
left there at the time of the crime. It suggests that there was no other reasonable





12
explanation for [the DNAs] presence. AB at 11 This statement by the state is
without merit. Ford and DE spent years in a monogamous, romantic relationship.
Ford spent countless nights in DEs condo. Just ten days prior to her death, Ford
was in DEs condo and helped her to bed. All of these circumstances would have
left Fords DNA in the condo. It is impossible for the state to tell when DNA was
left there. In fact, Robert Sailors, the forensic scientist who conducted the DNA
tests for the state, found five times more of his own DNA on the cutting of the
towel as he found Fords. 15R14748 Further, Dr. Johnson explained that [i]ts a
reasonable expectation that Fords DNA would be found due to his presence in
the condo, days before the death of DE. 16R175 Dr. Johnson was not surprised
that Fords DNA would be found on the towel, even after a washing. 16R176
The state also contends that the deceased washed her white towels weekly,
using bleach. AB at 25 The housekeeper would rotate and do Deborah Edwards
home on one Thursday and DEs condo the following week. Ford was in DEs
condo, depositing his DNA, on December 20, 2008. The next Thursday, on which
laundry would have been washed, was December 25, 2008, Christmas. The next
Thursday was January 1, 2009, the day of DEs death. It is reasonable to assume
that the housekeeper shared by the Edwards did not report to either home on
Christmas and that DEs family did not celebrate the holiday by doing laundry.
5. The state contends that there was no evidence that anyone else was in





13
DEs home at the time of her death, as [t]here was no forced entry, and no
valuables missing. The lack of evidence of the presence of anyone else in the
apartment is due to faulty police work. Although what appears to be graphite from
fingerprinting can be seen on multiple photographs offered into evidence, officers
testified that they did not take prints, one officer going as far as to agree that he did
not think it was wise to take fingerprints. See SX 113, 114; 11R102, 132, 16364,
167 Officer Terrill testified that he attempted to take prints, but stopped when
legible prints could not be taken off of a few items. 11R20405 The lack of
evidence collected at the scene also indicates that the investigation was guided by
tunnel-vision.
6. The state contends that the jury also considered other suspicious behavior
as his failure to assist police or stay in touch with the Edwards family. This
statement is absurd. The day following discovery of DEs body, Ford went to
police for a lengthy interview. It was not until a few days later, when Deborah
Edwards began to threaten and stalk Ford that he began to withdraw. Deborah
Edwards inspected him every time she saw him. She testified as to his appearance
even down to the length of his fingernails. 9R175 She sent Ford emails from her
deceased daughters account, as well as letters and cards accusing him of her
murder beginning on February 1, 2009. See Defense Exhibits 5, 710, 1219, 21
23, 23A, 24, 24A, 2628, 30.





14
None of the six items the state claims cumulatively establish proof beyond a
reasonable doubt even amount to probable cause. The evidence is legally
insufficient to sustain the conviction.
Motion for New Trial
An appellate court reviews the denial of a motion under an abuse of
discretion standard. Charles v. State 146 S.W.3d 204, 209 (Tex. Crim. App.
2004). A trial court abuses its discretionwhen no reasonable view of the record
could support the trial courts ruling. Id. at 211.
At the motion for new trial hearing, Ford moved admission of the exhibits
attached to the motion for new trial, to which the state had no objection. 20R15
Thereafter, the state successfully objected to admission of the witnesses testimony
and each was offered via an offer of proof. But, since each exhibit included the
affidavits of these same witnesses or concerning the subject matter of each of their
testimony, the state opened the door to the testimony. The state did not cross-
examine any witness or offer any proof of its own.
The States cell tower witness changed his theory. Defense counsel
presumed he would testify consistently with their pretrial interview. In their
pretrial interview, the witness indicated that Fords location could not be
determined by cell tower location data. When the States cell tower witness
changed his testimony during trial, claiming, one could determine Fords exact





15
location, defense counsel was surprised and learned he needed an expert witness.
He asked for a continuance since he could not even review the new color charts
and data that he was being furnished at trial. Thus, the expert on cell call
distribution presented during the motion for new trial hearing was newly
discovered evidence.
Similarly, Ford had the days worth of bank camera video prior to trial but
did not know the distinct figure photographed that the State planned to say was
Ford. Thus, no particular time seemed relevant. Thus, after trial counsel offered
the newly discovered evidence of Dr. Glenn James, Dean of the School of
Mathematics, Science, and Engineering at the University of the Incarnate Word.
He had formerly served in the Air Force where he determined the identities of
possible enemy combatants from satellite images. He stated that the figure seen
entering and exiting the Gallery Court condominiums is between six feet and six
feet, six inches tall. 1CR38081 Jordan Hasslochers height. This expert noticed
a soft, independent light source emanates from the figure which resembles the
light given off from a cell phone. 1CR38081 Hasslocher testified that he walked
carrying his light emitting iPad.
Based on this uncontroverted and admitted evidence that the figure walking
in and out of the condos could not have been Ford, located by cell tower data at the
condos, the court abused its discretion in failing to grant a new trial.





16
Historical Cell Data
In order to preserve a claim for appellate review,
the record must show that the complaint was made to the trial court
by a timely request, objection, or motion that stated the grounds for
the ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context. Tex. R.
App. P. 33.1(a)(1)(A).

The Court of Criminal Appeals has held that grounds for review are sufficiently
preserved when it is clear taken in contextthat all participants at trial in fact
understood Appellants objectionand could not reasonably have understood it to
mean anything else. Lankston v. State, 827 S.W.2d 907, 911 (Tex. Crim. App.
1992).
In Fords motion, Defense counsel lists Tex. Code of Crim. Procedure Art.
18.21, the improper invasion of Defendants reasonable expectation of privacy
(referencing the Fourth Amendment to the U.S. Constitution, Katz v. U.S., 389
U.S. 347 (1967) and its progeny), and U.S. v. Jones, 132 S. Ct. 945 (2012).
1SCR17678 In arguing the merits of his motion orally, Defense counsel objected
to [g]athering information that is subject to a reasonable expectation of privacy,
even to a First Amendment objection onin that sometimes this sort of
information reveals association, the Freedom of Association Clause of the
Constitution of the Bill of Rights. 4R15 The prosecutor, exhibiting her clear





17
understanding of the grounds on which the defense was objecting stated, if the
Court looks they should be able to determine that this is being brought underthis
38.23 allegation. 4R23 Further, the prosecution acknowledged the Defendants
First Amendment argument stating, the defense has raised this issue that perhaps
this is a First Amendment content issue. 4R19 It is clear that all participants
understood that the objection was made citing the First, Fourth, and Fourteenth
Amendments to the U.S. Constitution, Article 38.23, as well as objecting to the
two applications to obtain records for AT&T, both of which cite 18 U.S.C.
2703, as stated in defense counsels written motion. 1SCR17699
The states brief cites In re Application of the U.S. for Historical Cell Site
Data, 724 F.3d 600 (5th Cir. 2013), for the proposition that addressing
information, which the business needs to route those [electronic] communications
appropriately and efficiently are not [generally protected]. In re Application, 724
F.3d at 611. The state fails to recognize how narrowly the Fifth Circuit made its
holding. The Fifth Circuit held that orders to obtain historical cell site
information for specified cell phones at the points at which the user places and
terminates a call are not categorically unconstitutional. In re Application, 724
F.3d at 615 (emphasis added). In other words, only the times at which the phone
user made or received a call, may data be collected. The opinion did not address
orders for information gathered from all phones that use a tower during a





18
particular interval, orders requesting cell site information for the recipient of a call
from the cell phone specified in the order, or orders requesting location
information for the duration of the calls or when the phone is idle. Id. The
prosecution acknowledged that the state took all forms of information available
from the phone company and used records containing the Defendant's incoming
and outgoing calls, texts and data. Data packetsthe fact that there was a data
download at a particular time, and the cell phone tower information. In other
words, where the Defendant's phone was receiving that information from. And
that's what those records contain. 4R1920 This includes incoming texts and
even phone updates when the user is unaware of data received. The phone can
even be turned off.
The states brief contends that Jones is inapplicable. AB at 38 However,
the brief then concedes that the statute cited by the state in its application for the
historical cell data was revised after the Supreme Courts decision in Jones. AB
at 41 The states brief also fails to recognize the connection between Jones and the
facts here. In both cases what was obtained was location information. As stated
by defense counsel, location is what were talking about here. 4R25
The states brief also cites the skewed facts relied upon by the state in its
application. AB at 41 The state fails to recognize as well, the citation to
Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993), as recognizing that





19
the Texas Constitution, Art. I 9, provides greater protection than the Fourth
Amendment.
It is the type of information requested by the state that is the issue. The state
did not request information created when the owner of the phone placed a call, but
all information including location information created and stored.
JURY NOTE
The state writes that defense counsel did not read into the record the portion
of the testimony it was requesting. It is therefore impossible to determine which
precise section was requested and denied. AB at 33 Ford read back to the court
which portions he requested the court read to the jury. 19R15 lines1620; 19R16
lines 2124
Over the objection of defense counsel, the trial Court read to the jury
testimony requested by the State that included the question,
Question by State: If Ford, hypothetically, maintains that the phone
that weve been discussing, that weve been talking about is solely in
his possession, is traveling with him, if he claims he is home at
Rosemary Avenue, 333 Rosemary Avenue some time after 11:20 and
remains there, and claims hes at home asleep in bed before midnight,
what is the only reasonable explanation for his phone pinging at the
Gallery Court location at 11:45?
Answer: His phone would have been near the site of Gallery Court.
Thats the only way that would happen. 8CR141

Over objection, the court did not include testimony in which the states witness
explained that he could not state for fact that a device is in the particular sector





20
from cell tower data.
Question by Defense Counsel: As a general principle, you cannot tell
this jury that if the record shows that a certain sector of a cell tower
was pinged by a cell device, that that cell device was in that sector
beyond any argument, can you?
Answer: No.
Question: And that's because depending on a number of variables, a
different cell tower or a different sector might service that activity?
Answer: Yes. 8CR145

The court, over objection, did not also include the testimony in which Doll admits
that [t]here are cases where you can set up a call on a cell site that is not the
closest cell site to you, or you could potentially even set up a cella call on a cell
site across town. 8CR146
The trial court must give a realistic interpretation to the jurys note so that
the defendant is not deprived of a fair trial. See Jones v. State, 706 S.W.2d 664,
66668 (Tex. Crim. App. 1986). In 2006, this Honorable Court parenthetically
described Jones as reading too little testimony back to the jury, and further
explained that [i]f the trial court reads too little or too much testimony it may
serve to bolster the States case and result in an abuse of discretion. Martinez v.
State, No. 040500437CR, 2006 WL 3017133, at 2 (Tex. App.San Antonio
2006, no pet. hist.). That is specifically what happened in this case. Ford
questioned the states witness in order to address the hypothetical question posed
by the state. As stated by Defense counsel in urging the court to include the





21
requested testimony, we have Mr. Doll saying two different things. 19R17 The
trial court abused its discretion and bolstered the states case by not including
crucial testimony posed to combat the hypothetical question posed by the state and
to present a full picture.

Improper Argument

The state contends that repeatedly referring to Ford as a liar during opening
statement was proper for opening statement because it is presumed that juries obey
a trial courts instruction to disregard under the reasoning of Archie v. State. 340
S.W.3d 734, 741 (Tex. Crim. App. 2011). The Court in Archie evaluated the
extent to which the prosecutors improper questions during final argument rose to a
level of irreversible misconduct. Id. The court reasoned mistrial is the
appropriate remedy when the objectionable events are so emotionally
inflammatory that curative instructions are not likely to present the jury from being
unfairly prejudiced against the defendant. 340 S.W.3d 734, 739 (Tex. Crim. App.
2011). (citing Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004). Here,
the prejudice from repeated and systematic name calling, questioning Fords
decision to not testify, and shifting the burden of proof, in a case built upon non-
probative circumstantial evidence cannot be doubted. Within the improper
arguments by the State, Ford is being blamed for failing to point the finger at





22
another individual or publicly state I didnt do this!. 18R90 This, when the state
well knew it had successfully excluded evidence of alternate perpetrators. This
inflammatory argument violated Fords right to due process in a manner that
amounts to an abuse of discretion. This is because it was central the states case
that Ford was lying about his whereabouts in the early morning hours of January 1,
2009. This accusation of Ford being a liar is prejudicial because the State does
not rely on sufficient evidence to reach this conclusion, yet conjures that notion
and places it in the jurors minds to argue it is so in its opening statement. Fords
conviction should be reversed and he should be granted a new trial.
Franks
The facts which the state claims remain in the search warrant affidavit after
redacting the falsehoods are insufficient to establish probable cause to search
Fords home and car. AB at 56 The state says that these facts are Ford and DE
had broken up two months before her death, a car similar to his drove into the
condo complex on the evening of her death, the car drove out and toward a nearby
shopping center, later a non-descript man strolled into the complex wearing blue
jeans and a dark shirt, Ford checked his phone when he said he was asleep, male
DNA was found on the towel on DE.
In Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004), the evidence
included:





23
(1) three dead bodies were discovered in a mobile home; (2) the
victims were appellant's wife and her two children; (3) appellant had
recently been released from jail and was living with the victims in the
mobile home where the bodies were found; (4) appellant's wife's car
was missing from the scene; (5) the victims were killed with a gun
and appellant was in possession of a gun; (6) an unsigned note stating
I am guilty of murder, incest, hatred, fraud, theft, jealously [sic], and
envy was found inside the mobile home on an envelope addressed to
appellant; (7) appellant had previously assaulted another woman; (8)
appellant's wife's car was parked outside of his girlfriend's apartment;
(9) at 2 a.m., appellant asked his girlfriend to check to see if there was
anything unusual outside of her apartment; and (10) when approached
by officers outside of her apartment, appellant's girlfriend told the
officers that appellant was inside her apartment, that he was armed
with a pistol and had access to a rifle and another pistol, that he had
been staying with her for several days, and that he had been driving
his wife's car. Hankins v. State, 132 S.W.3d 380, 38889 (Tex. Crim.
App. 2004).

The Court held that while these facts together might create suspicionthey
do not add up to probable cause that appellant committed the murders. Hankins,
132 S.W.3d at 389. Here, the facts remaining in the search warrant affidavit do not
even rise to the level of that presented in Hankins.
Improper Admission of non-evidence
Despite the fact that Ford did not object to the admission of the three-hole
punch, the court should still review its admissibility under rules for plain error.
When error is not preserved, most jurisdictions consider unpreserved error under
rules for plain error. Jimenez v. State, 32 S.W.3d 233, 238 (Tex. Crim. App.
2000). Texas courts refer to plain error as fundamental error. Id.; TEX. CODE





24
CRIM. PROC. 36.19 states that, the judgment shall not be reversed unlessit
appears from the record that the defendant has not had a fair and impartial trial.
TEX. CODE CRIM. PROC. 36.19.
The three-hole punch, admitted as a possible murder weapon, was not
actually purchased by Deborah Edwards until three months after the death of her
daughter, DE. SX58, 9R168 The fact that the three-hole punch was admitted into
evidence demonstrates that the defendant was not afforded a fair and impartial
trial, because the jury was asked to consider whether a piece of evidence was the
murder weapon, when it could not have possibly been the weapon. DE was injured
by an implement that caused parallel track bruising. SX42, 14R110 Therefore, she
was struck with a cylindrical object. 14R111
In addition, the court erred in admitting the cordless drill charging cord as a
weapon [9R197] over objection. 9R196 The State claims that, an item similar to
a lost item is admissible if it will aid the jury in determining an important issue in
the trial. However, if the similar item is not a close enough match to the actual
evidence, its probative value will be slight and admitting it will be error. Gloede
v. State, 328 S.W.3d 669, 675 (Tex. App.2010, no pet.).
On cross-examination of States expert witness, it is apparent that the
charging cord is not a close match at all to the weapon:
Q: You did measure the size of the marks, didnt you?





25
A: Yes.
Q: And your measurements that you came up with waswell, lets
see. Between .5 and centimeter in thickness?
A: Yes.
Q: With a slightly irregular possibly patterned inferior margin. Put
that in lay terms for us. Patterned. Does that mean like a webbing or
a
A: Fabric or some pattern to whatever the ligature was. 14R178
It is clear from the transcript that the similar object is not a close enough object to
the actual evidence. Ford should be granted a new trial.
Evidence of Break in improperly excluded

Ford sought to admit evidence that the DE family home was burglarized on
December 30, 2008. 9R10 Similarly to DEs condo, there was no sign of any
forced entry at the Edwards home, it was a gated community. The Edwards only
discovered a knife taken from their home. At DEs only a three-hole punch and
charger cord was allegedly taken.
Noting that Ford did not have a key to either DEs condo or the Edwards
family home, it would be probative to show that at both locations the entry was
similarly executed by a person with access. 9R14 The evidence would have been
highly probative in suggesting that whoever committed DEs murder may have
also entered the Edwards home given close proximity in time and common
unforced entry. 9R11, 14 Ford was demonstrably in a different part of the state at
the time of the Edwards break in. Thus, evidence that both things happened by a





26
similar modus operandi, suggests the same person may have made both entries and
that person could not have been Ford.
The trial court improperly excluded this evidence under Rule of Evidence
403, claiming that the probative value of this evidence would be substantially
outweighed by its prejudicial effect. The trial Court excluded the evidence as
suggesting an alternate perpetrator without a sufficient nexus. 9R17 But the
break-in, being so close in time to DEs death and so similar to the entry to her
condo, was relevant to suggest a common culprit. Wiley v. State, 74 S.W.3d 399
(Tex. Crim. App. 2002). While this evidence may have some prejudicial effect,
that effect would certainly be outweighed by the probative value. Additionally, the
State opened the door to this evidence by relying on the fact that the entry into
DEs condo was not forced, in an attempt to meet their burden to convict Ford.
11R57 The exclusion of this evidence amounted to an abuse of discretion by the
trial court.

Independent Examination of DNA Evidence
The State argued that Defense Counsel failed to preserve the denial of
Fords Motion for DNA testing. AB at 56 However, the motion was ruled on in
the hearing on the Motion for New Trial:
MS. ORR: One remaining matter. We do have my motion for DNA





27
testing, the mitochondrial blood testing of the right hand of Ms.
Edwards. I want to obtain a the Courts ruling on that motion so I
may preserve the issue that Im raising for this motion for new trial.
And I would request that the Court rule on our pending motion in both
regards at this time.
THE COURT: And Im denying that motion, Counsel, for the record.
21R10
Continuance
At trial, there was a change in the States cell tower witness position
regarding the historic cellphone data. Upon being surprised, counsel objected and
requested a continuance to study the new information.
The State argues counsel did not preserve error because he did not present a
written and sworn motion. AB at 55 However, the U.S. Supreme Court has held
such circumstances call for relaxation of the rules due to surprise. Lee v. Kemna
534 U.S. 362 (2002). Kemna notes the importance that the neither trial court nor
State counsel mentioned the procedural rules upon the defenses request and that
there is no indication the Courts ruling would have changed upon formally
perfect compliance of the rules. Id. at 337. Also, there is no Missouri case
published requiring an unmodified application of the Rules in the urgent situation
Lees case presented. Id. at 337.
The urgent situation presented to Ford requires a modified application of the
rule in the interest of justice. Id. at 337. Neither the trial court, nor the State
counsel here, mention the formal rules, constituting waiver under Kemna. Also,





28
there is no indication of a change in the Courts ruling upon compliance with the
rules. Based on Kemna and in the interest of justice, Fords conviction should be
overruled.
Respectfully submitted:

CYNTHIA E. ORR
Bar No. 15313350
GOLDSTEIN, GOLDSTEIN & HILLEY
310 S. St. Marys St.
29
th
Floor Tower Life Building
San Antonio, Texas 78205
210-226-1463
210-226-8367 facsimile
E-mail: whitecollarlaw@gmail.com

By:__/s/ Cynthia E. Orr_____________
CYNTHIA E. ORR

Attorney for Appellant,
JON THOMAS FORD

CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the typeface requirements
of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface
no smaller than 14-point for text and 12-point for footnotes. This document does
not comply with the word-count limitations of Tex. R. App. P. 9.4(i) because it
contains 7,495 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
By:__/s/ Cynthia E. Orr_____________
CYNTHIA E. ORR





29
CERTIFICATE OF SERVICE

I hereby certify that a copy of the above foregoing Appellants Reply Brief
has been delivered via E-mail (as a registered participant of the Electronic Filing
System) and U.S. Mail, first class, to Jay Brandon, Assistant District Attorney,
Paul Elizondo Tower, 101 W. Nueva, 4
th
Floor, San Antonio, Texas 78205, on this
the 12th day of May, 2014.
By:__/s/ Cynthia E. Orr_____________
CYNTHIA E. ORR







No. 04-12-00317-CR

COURT OF APPEALS
IN THE FOURTH JUDICIAL DISTRICT
SAN ANTONIO, TEXAS



JON THOMAS FORD,
Appellant, Appeal from the
186
th
Judicial District Court
versus of Bexar County, Texas
Cause No. 2010-CR-7741
THE STATE OF TEXAS,
Appellee.



REPLY BRIEF FOR APPELLANT

APPENDIX




Martinez v. State, No. 040500437CR, 2006 WL 3017133 (Tex.
App.San Antonio 2006, no pet. hist.)
















2006 WL 3017133
Only the Westlaw citation is currently available.
SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
OPINION
DO NOT PUBLISH
Court of Appeals of Texas,
San Antonio.
Adrian Oscar MARTINEZ, Appellant
v.
The STATE of Texas, Appellee.
No. 04-05-00437-CR. | Oct. 25, 2006.
From the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-8531; Pat Priest, Judge Presiding.
Attorneys and Law Firms
Michael Stephen Raign, for Adrian Oscar Martinez.
Susan D. Reed, for The State of Texas.
Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
Opinion

OPINION
Opinion by SANDEE BRYAN MARION, Justice.
*1 A jury found defendant, Adrian Oscar Martinez, guilty of aggravated robbery and assessed punishment at fifteen
years confinement and a $10,000 fine. In a single issue on appeal, defendant asserts the trial court erred by having
more testimony read back than was necessary to resolve a dispute among the jurors. We conclude the trial court did
not err in reading the testimony to the jury and, therefore, we affirm.


BACKGROUND
During jury deliberations, the jury requested additional information regarding the testimony of the victim Anna-Lisa
Esquivel. In a single note, the jury requested: (1) the transcript of Anna-Lisas testimony in which she identified the
defendant, and (2) the time frame between the occurrence of the crime and the time of identification of the
defendant. In response to the jurys request, the court properly prepared a supplemental charge tracking the language
found in article 36.28 of the Texas Code of Criminal Procedure, which provides that if the jury disagree as to the
statement of any witness they may, upon applying to the court, have read to them from the court reporters notes that
part of such witness testimony or the particular point in dispute, and no other. TEX.CODE CRIM. PROC. ANN.
art. 36.28 (Vernon 2005). Following the trial courts supplemental charge, the jury sent a second note, which stated:
We are in disagreement as to the testimony of Anna-Lisa Esquivel concerning her description of the perpetrator to
the police. We would like to see the specific physical description she gave during her testimony in court of the
person who stole her phone. (Emphasis added.)

Over defendants objection, the trial court instructed the court reporter to read the following portions of Anna-Lisas
testimony:


Direct examination of Anna-Lisa Esquivel
Q. And approximately how old was the male in your opinion?
A. Twenty.

...

Q. If you would, tell us the person that you have identified in court today, the Defendant Adrian Martinez, tell us, if
you would, what he looked like that day, the description of him. (Emphasis added.)

A. He had his hair slicked back and he had a goatee and a moustache and a little beard right here and was wearing an
over shirt and an undershirt and pants.

Q. And when you say an over shirt and undershirt, what type of over shirt was he wearing?

A. A button down shirt.

Q. Okay. And do you recall the color of his button down shirt?

A. No.

Q. Okay. And a muscle T is what some people call a white tank top. Is that correct?

A. Thats correct.

Q. Where it shows his arms. Is that what a tank top is to you, a white muscle T?

A. Yes.

...

Q. Did you or did you not previously tell the jury what the Defendant was wearing when he was standing less than a
foot outside of the drivers side of your door?

A. I did.

Q. Okay. What did you previously tell the jury that he was wearing?

A. An opened over shirt, a button up shirt with a shirt underneath it.

*2 Q. And you said it was open. Is that what you just told us?

A. It was not-it was not buttoned-it was a button up shirt but it was not completely buttoned down.

Q. And what was he wearing underneath the button down shirt that wasnt buttoned completely to the top?

A. A tank top.

Q. And what color was that tank top?

A. White.

Q. And were you able to see that white tank top underneath this over shirt that he had buttoned not all the way up to
the top?

A. Yes.

Q. And is that what you have previously told this jury when I had asked you what was he wearing at the scene?

A. Yes.



Cross-examination of Anna-Lisa Esquivel
Q. Now, in your statement-you do not at any point in your statement describe the shirt or shirts that were worn by
the person that committed this robbery against you, the male. Do you describe his shirts in terms of color or style or
anything like that. (Emphasis added.)
A. No.

...

Q. And when you provide a description of the perpetrator of this robbery in your written statement, you dont say
anything about a muscle shirt or a tank top. Is that correct? (Emphasis added.)

A. Thats correct.



Re-direct examination of Anna-Lisa Esquivel
Q. During the entire time the Defendant was standing outside of your drivers side door, was there anything
blocking your view from him?
A. No.

Q. Was he wearing any type of mask?

A. No.

Q. Was he wearing a bandana over his face?

A. No.

Q. Was he wearing a ball cap, any type of hat or hood or anything to mask his identity?

A. No.

...

Q. And specifically, did you tell the police in your statement about any facial hair that the Defendant had?
(Emphasis added.)

A. Yes.

Q. Okay. And what did you tell him?

A. I told the detective that he had a goatee and moustache. And his-his hair was slicked back.




DISCUSSION
When the jury asks the trial court to have a witnesss testimony read back, the trial court must first determine
whether the jurys inquiry is proper under Texas Code of Criminal Procedure article 36.28. Brown v. State, 870
S.W.2d 53, 55 (Tex.Crim.App.1994). Article 36.28 requires a disagreement among the jurors as to the testimony of
a witness before the witnesss testimony can be read back to the jury. Robison v. State, 888 S.W.2d 473, 480
(Tex.Crim.App.1994). Once the determination has been made that the jurys request is proper, the trial court must
then interpret the jurys communication, decide what portions of the testimony will best answer the inquiry, and
limit the reading of the testimony accordingly. Brown, 870 S.W.2d at 55. We do not disturb the trial courts decision
without a showing of a clear abuse of discretion and a showing of harm. Id.

An abuse of discretion arises when the trial courts decision is so clearly wrong as to lie outside the zone within
which reasonable persons might disagree. Howell v. State, 175 S.W.3d 786, 790 (Tex.Crim.App.2005). Once the
decision has been made to have certain testimony read back to the jury, the trial court must balance two competing
concerns: the first is that the trial court avoid commenting on the weight of the evidence, and the second is that the
jurors are supplied the means necessary to resolve any factual disputes they may have. Robison, 888 S.W.2d at 480.
If the trial court reads too little or too much testimony it may serve to bolster the States case and result in an abuse
of discretion. See Jones v. State, 706 S.W.2d 664, 668 (Tex.Crim.App.1986) (reading too little testimony back to the
jury); Pugh v.. State, 376 S.W.2d 760, 762 (Tex.Crim.App.1964) (reading too much testimony back to the jury).
However, the trial court does not abuse its discretion when the testimony read back to the jury provides the context
for the testimony in dispute. See Brown, 870 S.W.2d at 56. Here, defendant contends the trial court abused its
discretion by reading testimony that exceeded the scope of the jurys request. In particular, defendant asserts the trial
court erred by reading Anna-Lisas in-court recollection of the description of the defendant instead of only reading
her testimony regarding the description she gave to the police. We disagree with defendants argument.

*3 The jury indicated there was a dispute as to Anna-Lisas testimony concerning her description of the perpetrator
to the police. But, in the same note, the jury requested the specific physical description she gave during her
testimony in court of the person who stole her phone. We believe the portion of the testimony complained of by
defendant provided context for the disputed testimony. In addition to context, we believe it provided the jury with
the means necessary to resolve any factual disputes without amounting to a comment on the evidence by the trial
court. Accordingly, we do not believe the trial courts decision is so clearly wrong as to lie outside the zone within
which reasonable persons might disagree. Howell, 175 S.W.3d at 790. Therefore, we conclude that the trial court
did not err in including Anna-Lisas in-court recollection of the defendant in the testimony that was read to the jury.


CONCLUSION
We overrule defendants issue on appeal and affirm the trial courts judgment.


End of Document

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