Ford v. State

• Decision Date: 20 August 2014
• Docket Number: No. 04–12–00317–CR.,04–12–00317–CR.
• Parties: Jon Thomas FORD, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

444 S.W.3d 171

Jon Thomas FORD, Appellant

v.The STATE of Texas, Appellee.

No. 04–12–00317–CR.

Court of Appeals of Texas, San Antonio.

Aug. 20, 2014.

Discretionary Review Granted February 4, 2015

Cynthia Hujar Orr, San Antonio, TX, for Appellant.

Jay Brandon, Assistant District Attorney, San Antonio, TX, for Appellee.

Sitting: CATHERINE STONE, Chief Justice, MARIALYN BARNARD, Justice, LUZ ELENA D. CHAPA, Justice.

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 Tarver'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 not 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; (3) 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 3155 (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 737, 742 (Tex.Crim.App.2013) (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. ref'd) (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 factfinder. 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 Tarver and Federspill testified they did not see Ford's white Chevy Tahoe parked in his driveway after midnight. The pair 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...