Ghanbari v. State
| Decision Date | 17 April 2019 |
| Docket Number | No. 05-17-00257-CR,05-17-00257-CR |
| Parties | ALI L. GHANBARI, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 199th Judicial District Court Collin County, Texas
Before Justices Bridges, Partida-Kipness, and Carlyle
Opinion by Justice Carlyle
Following appellant Ali L. Ghanbari's not-guilty plea, a jury convicted him of aggravated robbery and assessed punishment at twenty-seven years' imprisonment. In five issues on appeal, appellant contends (1) the evidence is legally insufficient to support his conviction; (2) the trial court erred by not excluding unlawfully obtained cellphone evidence; (3) the trial court erred by not properly instructing the jury respecting appellant's liability as a party; and (4) because a portion of the trial court record is missing, appellant is entitled to a new trial. We affirm.
The indictment in this case alleged that on November 21, 2012, while committing theft, appellant "intentionally or knowingly threaten[ed] or place[d] Robert Brady III in fear of imminent bodily injury or death" and "did then and there use or exhibit a deadly weapon, to-wit: a firearm." Appellant filed pretrial motions to suppress two types of cellphone evidence: (1) "electronic customer data" obtained from cellphone service providers and (2) data police extracted from a cellphone. Following a pretrial hearing, the trial court denied those motions to suppress.
At trial, Brady testified that on the date in question, he was living in an apartment in Plano with several roommates. Brady had met appellant approximately four months earlier when Brady began buying marijuana from appellant to use and sell. One of those transactions took place at Brady's apartment. While at Brady's apartment, appellant asked Brady if he had any guns. Brady said he had a pistol and appellant asked to see it. When Brady went into his bedroom closet to remove the pistol from its safe, appellant followed him. Brady asked appellant to "step back" because he was "not comfortable with [appellant] being in there." After seeing the gun, appellant expressed interest in buying it, but then told Brady the asking price was too high. Brady testified he "just got really sketchy vibes" from appellant during that visit.
According to Brady, after that visit, he made only one additional purchase from appellant, but appellant continued trying to sell to him "often." On November 7, 2012, appellant texted Brady, soliciting him to purchase more marijuana, and saying "don't be flaky bro." Brady did not respond.
Brady testified that several days before the incident in question, his friend Sawyer told him someone was "setting up a hit" on Brady's apartment, which Brady understood to mean someone was planning to "rob me." Brady stated that based on that conversation, appellant was the person he "thought the threat came from." Following that conversation, Brady purchased a shotgun. Brady "confront[ed] [appellant] via text message," saying, "just cuz i dont want your business doesent mean im flakey and whats this i hear you setten up a lick on my place?"
At approximately 3 a.m. on November 21, 2012, Brady was lying in bed awake when an object came "flying" through the glass patio door in his room, shattering the glass. He then saw"two pairs of legs hit the patio." Brady grabbed his shotgun, which was next to his bed. He testified that in a matter of seconds, one of the two persons from the patio "made it inside" his bedroom, stood at the foot of his bed, and "raised their arm up." Brady shot at that person three times. Brady's roommates heard the shots and called 9-1-1. Brady testified the person he shot at was "deceased on the floor." The second person Brady had seen on the patio fled without entering the apartment.
Brady stated that at some point, the police started asking him questions "about someone named Ali." He told police about appellant's previous visit to his apartment and the text messages described above. Brady later learned the deceased was Chinedu Onyeuku, whom he had not met or seen before.
On cross-examination, Brady testified (1) he initially told police he did not sell drugs, which was a lie; (2) he told police the individuals he saw were "two black males," but he actually did not know the race of the second man on the patio; and (3) he did not mention appellant's name to police until they specifically asked about appellant more than a month after the incident in question.
Tiaira Erwin testified she and Onyeuku met in junior high school in Nebraska and moved to Dallas in 2006. At the time of these events, they had been "in a relationship" for twelve years and had two children together. On the evening in question, Onyeuku ate dinner with her and the children, then left with a friend who was visiting from Nebraska, Benny Valentine. Erwin expected Onyeuku to return home later that night, but he did not. At approximately 5:30 a.m. on November 21, 2012, Erwin received a phone call from Valentine's mother, Kimberly Lessley, who lived in the Dallas area. From that phone call, Erwin learned (1) "[Onyeuku] was shot," (2) she "need[ed] to look for him" in Collin County; and (3) Onyeuku's car was at Lessley's home. Erwin immediately went to Lessley's home.
Inside Onyeuku's car, Erwin found a black Android cellphone she thought was Onyeuku's. But when Erwin called her own phone from the black Android phone, she saw the phone number was not Onyeuku's. She started "calling the numbers out of the phone" and asking "whose phone is this" and "where is [Onyeuku]." She contacted a Plano police officer who worked at the bank where she was employed and asked if he could help her locate Onyeuku. At about noon that same day, Erwin took the black Android phone to a Plano police station. As she was walking into the police station, that phone received an incoming call and she answered it. A male voice asked where she was and told her not to give the phone to police. Erwin ended the call and started "going through the text messages" in that phone. She "saw a conversation with the owner of that phone" and "saw [Onyeuku's] number in there." She gave the black Android phone to police.
Plano police detective Brian Pfahning testified that while investigating the incident described above, he observed Erwin's interview at the Plano police station. Based on information from that interview, he obtained a search warrant to extract data from the black Android phone Erwin gave police. The extracted data included contacts, incoming and outgoing calls and text messages, and the phone number associated with the phone. Pfahning stated that in that data, he found text messages using the phrase "hit a lick," which was "indicative of some discussion of a robbery." Printouts of the phone's data were admitted into evidence over appellant's objection.
Pfahning testified one of the text message exchanges from the black Android phone was between the phone's owner, "Ali," and a contact described in the phone data as "Nebraska." Specifically, (1) Ali sent a text message to Nebraska at 10:50 a.m. on November 15, 2012, that read "U still wanna hit that lick with me"; (2) about seven minutes later, Nebraska responded "yup" and "call me"; (3) the next day, Nebraska texted Ali "Told my Lil homie about it..Told me he could be here tomorrow"; (4) Ali responded "Let's do it then"; (5) on November 17, Nebraska texted Ali "My people will be here tonight"; (6) the next morning, Ali responded "Is ur homie intown im ready to hit that lick when you are"; (7) shortly after midnight on November 21, Nebraska texted Ali "What's goin on bro"; and (8) the data showed a phone call from Ali to Nebraska at 1:41 a.m. on that date.
Additionally, the extracted data included a November 18, 2012 text message exchange between Ali and "Robert." Specifically, a text from Robert to Ali stated Ali responded to Robert with several messages sent within a few minutes of each other: "Wtf im not doing [expletive] I make enough money go [expletive] yourself"; "Who said that [expletive] I'll go clear this up"; and "If I wanted u jacked it would've been done with one phone call to n u would have 3 mexicans kicking in ur door and tying up everybody till they got whatever they want. if I wanted to I would've done it." Six minutes after responding to Robert, Ali texted a contact named "Isaac," asking "How does Robert know im jacking him." Isaac immediately responded, "Idk just call me." Pfahning testified "jacking" means "they're either going to rob him or steal his stuff."
Plano police detective Daniel Caballero testified that on the date of the incident in question, he was dispatched to the crime scene and assigned to lead the investigation. He saw a "Smith & Wesson .38 caliber revolver" on the floor "within very close proximity" to Onyeuku's body. The apartment's occupants "did not identify the revolver as being their property." Caballero stated he believed the revolver "came from an outside source; the deceased person."
After Caballero returned to the police station, he learned Erwin had contacted police and provided an Android phone that she told police was "associated" with the name "Ali." Caballero testified he and other detectives started "running the name and the phone number through open source databases, public databases, internet databases" to "learn[] who this name and phone number came back to" and "that's how we learned the identity of Ali Ghanbari." Also, Caballerolooked through data extracted from the cellphone to obtain information that might be related to the case. He testified (1) Erwin had provided police with Onyeuku's phone number; (2) in the Android phone Erwin gave police, he saw text messages...
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