Cervantes-Guervara v. State

• Decision Date: 03 October 2017
• Docket Number: NO. 14-16-00104-CR,14-16-00104-CR
• Citation: 532 S.W.3d 827
• Parties: Jose Jaime CERVANTES-GUERVARA, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

532 S.W.3d 827

Jose Jaime CERVANTES-GUERVARA, Appellant

v.The STATE of Texas, Appellee

NO. 14-16-00104-CR

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

Opinion filed October 3, 2017

Douglas M. Durham, Houston, TX, for Appellant.

Molly Wurzer, Houston, TX, for State.

Panel consists of Justices Boyce, Jamison, and Brown.

Martha Hill Jamison, JusticeIn three issues, appellant Jose Jaime Cervantes-Guervara appeals his conviction for capital murder, alleging he received ineffective assistance of counsel based on his counsel's failure to object to the trial court's admission of cell phone records obtained without a warrant and alleging the trial court erred in failing to suppress appellant's confession because the State did not show that appellant "voluntarily, knowingly, and intelligently" waived his Miranda rights.¹ Because the State was not required to obtain a warrant for the cell phone records at issue, we conclude that appellant failed to establish that he received ineffective assistance of counsel. We further conclude that under the totality of the circumstances, the evidence supports the trial court's conclusion that appellant knowingly, intelligently, and voluntarily waived his Miranda rights and thus the trial court did not err in denying appellant's motion to suppress. We affirm.

Background

The manager of a 24-hour game room was shot and killed early one morning after leaving work. His assailants, including appellant, followed him while he was driving home and transporting money in his van. When the assailants approached the van, an exchange of gunfire ensued. The van was driven away from the murder scene and abandoned.

An investigation of cell phone call logs and cell site location information led officers to identify as suspects appellant and two other people, Gricelda Delcid and William Lopez. Cell site location information reflects the location of the cell phone user based on the proximity of the phone to cell site towers while the user is speaking on the phone.²

The locations of the three suspects' cell phones on the day of the murder were mapped using cell site location information. Several hours before the murder, all three phones were in the vicinity of Lopez's home, which is away from the game room and eventual murder scene. At the time complainant left work, however, the three phones all were near the game room. At about the time of the shooting, Lopez, whose phone was near the murder scene, called appellant, whose phone was near the area where the van was dumped.

Appellant was detained a few months later in the Fort Bend County Jail for a different offense. Sergeant Bush and officer Mejia interviewed appellant there.³ Appellant's statement from that interview was admitted at trial.

In his statement, appellant said that Lopez called him and offered him a "job"—to help rob complainant. Lopez believed that complainant had $50,000 in his van and offered appellant $10,000 for his participation in the job. On the morning of the murder, appellant rode to the game room in a truck with another suspect named Junior. Appellant and Junior followed complainant when he left work. Lopez followed in another vehicle. After both vehicles followed for a while, Lopez called appellant and told him to call off the job because Lopez thought complainant knew he was being followed. Junior refused and eventually pulled in front of the van, got out, approached the van, and engaged in a shootout with complainant.⁴ After the gunfire, Lopez called appellant, and appellant told Lopez that complainant "fell right there ... [i]n the street."

Appellant filed several pretrial motions to suppress his statement, which the trial court denied. This court abated the appeal for the trial court to file findings of fact and conclusions of law. The trial court filed the findings and conclusions, and the appeal was reinstated.

Discussion

Appellant argues in his first two issues that he received ineffective assistance of counsel at trial because his counsel did not object to the admission of the call logs and cell site location information pertaining to appellant's phone. Appellant contends such information was obtained by law enforcement in violation of the prohibition against unreasonable searches and seizures in the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution.⁵ In his third issue, appellant argues that the trial court erred in failing to suppress appellant's custodial statement on the basis that appellant did not voluntarily, knowingly, or intelligently waive his Miranda rights. We will address appellant's two ineffective assistance complaints together and then turn to his Miranda claim.

I. Ineffective Assistance Not Established in Failing to Object to Cell Phone Records Obtained without a Warrant

To prevail on an ineffective-assistance claim, a defendant must prove that counsel's representation fell below an objective standard of reasonableness and the defendant suffered prejudice from such deficiency. Strickland v. Washington , 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We indulge a strong presumption that counsel's conduct fell within the wide range of reasonable assistance. Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To defeat this presumption, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness."

Thompson , 9 S.W.3d at 813. Counsel is not ineffective for failing to raise an objection that lacks merit. Bradley v. State , 359 S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd).

The Court of Criminal Appeals recently held that call logs and cell site location information are not constitutionally protected under the Fourth Amendment or Article I, Section 9 because they constitute records held by a third party service provider in which appellant has no legitimate expectation of privacy. Hankston v. State , 517 S.W.3d 112, 121-22 (Tex. Crim. App. 2017) (holding defendant neither owned nor possessed call logs and cell site location information because they were created by cell phone companies and subject to their control and thus Article I, Section 9 did not restrict law enforcement officials from obtaining such information); Love v. State , No. AP-77, ––– S.W.3d ––––, ––––, 2016 WL 7131259, at *3 (Tex. Crim. App. Dec. 7, 2016) ("Appellant's call logs and [cell site location information] are not ... constitutionally protected."); Ford v. State , 477 S.W.3d 321, 330 (Tex. Crim. App. 2015) (holding the State's receipt of cell site location information "held by a third-party cell-phone company identifying which cell-phone towers communicated with [the appellant's] cell phone at particular points in the past ... did not violate the Fourth Amendment" and thus did not restrict law enforcement from obtaining cell phone records revealed to a third party).⁶ Accordingly, an objection by trial counsel that the State was required to obtain a search warrant for the cell phone records would have lacked merit. See Hankston , 517 S.W.3d at 120 ; Ford , 477 S.W.3d at 330.

Appellant cites several cases from other jurisdictions that predate Ford and Hankston and are not binding on this court. We are bound to follow the decisions of the Texas Court of Criminal Appeals, and when, as here, that court has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation. Mayer v. State , 494 S.W.3d 844, 848 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd).

Appellant also cites two Supreme Court cases in support of his argument, Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), and United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). However, these cases are distinguishable from the facts of this case. In Riley , the high court held that authorities must obtain a search warrant before searching the digital contents of a cell phone. 134 S.Ct. at 2485. The Court of Criminal Appeals recently distinguished Riley from cases involving cell phone call logs and cell site location information, noting such records, as "non-content evidence, lawfully created by the cell-phone companies themselves," are distinctive from "[r]ecords containing personal content" on a person's cell phone. See Love , ––– S.W.3d at ––––, 2016 WL 7131259, at *4 (citing Riley , 134 S.Ct. at 2485, and Ford , 477 S.W.3d at 321 ).

In Jones , the government, without a warrant, installed a GPS device on a suspect's vehicle to track its movements. 565 U.S. at 403, 132 S.Ct. 945. The high court held that attaching such a device to a vehicle without a warrant was an impermissible search under the Fourth Amendment. Id. at 404, 132 S.Ct. 945. The Court of Criminal Appeals distinguished Jones on the basis that cell phone call logs and cell site location information do not involve a GPS device, a physical trespass, or real time or prospective cell site location information. Ford , 477 S.W.3d at 333.

Appellant does not suggest any other grounds for excluding the cell phone records. Because any objection at trial to the State's failure to obtain a warrant for call logs and cell site location information under the Fourth Amendment or Article I, section 9 would have lacked merit, see Bradley , 359 S.W.3d at 919, appellant's representation did not fall below an objective standard of reasonableness.

We overrule appellant's first and second issues.

II. Voluntary, Knowing, and Intelligent Waiver of Miranda Rights

In his third issue, appellant contends that the trial court erred in denying his motion to suppress his statement to police because the State failed to prove he voluntarily, knowingly, and intelligently waived his Miranda rights. Specifically, appellant claims that he was unable to waive his rights because he (1) was not a United States citizen and was not...