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Date: 08-12-2019

Case Style:

Christian Shawn Williams v. The State of Texas

Case Number: 01-17-00945-CR

Judge: Peter Kelly

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: Brian Marcus Middleton
John J. Harrity III
Jason Bennyhoff

Defendant's Attorney: Stephen A. Doggett

Description:





On the evening of May 28, 2015, Stephanie Peña was shot and killed in a
retail pharmacy parking lot while she sat in the driver’s seat of her car. A witness
in the parking lot heard a gunshot and saw a young African-American man run
from a black car to a white car. The white car sped away, and the witness called
911.
Responding officers found a spent cartridge casing on the floorboard of the
Peña’s car. They also found a small amount of marijuana and a beer can that was
still cold to the touch. They recovered Peña’s cell phone and extracted its contents
to a separate drive. Cell phone data records showed that before her death, Peña was
communicating with a phone number registered to Solitaire Williams, Christian
Williams’s mother. The number was the same number he had given to the Fort
Bend County probation department as his own. The records associated with that
phone number showed multiple communications with Peña, including more than
75 text messages and two calls, between the afternoon and evening of May 28, but
not after the time Peña died. Police tried to locate Williams’s phone after the
murder, but it was turned off throughout the entire investigation.
Investigators discovered other phone numbers associated with Williams by
contacting his probation officer. They obtained a warrant to “ping,” or connect
with, a number associated with him, providing law enforcement with the phone’s
3

location every 15 minutes. The phone was located in an apartment complex in
Houston. Simultaneously, detectives investigated another person, Robert Dike,
based on leads they gathered. Dike lived in the same apartment complex where
Williams’s phone pinged. After surveillance, officers obtained an arrest warrant for
Williams and went to the apartment. When they arrived, Williams jumped from the
third-floor balcony to the second-floor balcony and surrendered. Dike was in the
apartment and was arrested on traffic warrants.
Detectives later obtained the actual text messages between Williams and
Peña. The text messages demonstrated that Williams contacted Peña to purchase
marijuana. The two negotiated a price for two ounces of marijuana and debated
where to meet for the purchase. Eventually, they agreed on a location near the
pharmacy parking lot. The last communication between them was a 90-second
phone call, the details of which are unknown.
Williams was charged with capital murder. At trial, the jury heard testimony
consistent with the above facts. Additionally, Demond Walton testified that he was
cellmates with Robert Dike, who eventually was also charged with the murder.
While in the Fort Bend County jail, the two men became friends, and Dike told
Walton why he was in jail. Dike said that he and Williams intended to rob a drug
dealer for marijuana.
4

The jury found Williams guilty of the lesser included offense of murder and
sentenced him to 23 years’ imprisonment.
Analysis
On appeal, Williams contends that the trial court erred in admitting
testimony from a cell phone analyst. He argues that her methods were unreliable.
He also asserts that the trial court erred in admitting Walton’s testimony because it
was inadmissible hearsay and violated his right to confrontation. We disagree and
affirm.
I. Admissibility of Expert Testimony
In his first issue, Williams asserts that the trial court erred in admitting
testimony from a Department of Public Safety analyst about cell phone location
tracking. He argues that the court abused its discretion in admitting the testimony
because the analyst did not know her methodology’s error rate. The State responds
that the analyst was qualified to opine on the location of cell phones, and her lack
of knowledge regarding error rates in the underlying software did not impact the
reliability of her opinion that the cell phone was near the pharmacy around the time
of the murder.
A. Standard of Review
We review the trial court’s decision to allow expert testimony for an abuse
of discretion. Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007). We
5

will uphold a trial court’s ruling on the admissibility of an expert witness as long as
it falls within the zone of reasonable disagreement. Taylor v. State, 268 S.W.3d
571, 579 (Tex. Crim. App. 2008). Absent a clear abuse of discretion, the trial
court’s decision to admit or exclude expert testimony will not be disturbed. Wyatt
v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).
The court considers three conditions in admitting a witness as an expert:
“(1) the witness qualifies as an expert by reason of his knowledge, skill,
experience, training, or education; (2) the subject matter of the testimony is an
appropriate one for expert testimony; and (3) admitting the expert testimony will
actually assist the fact-finder in deciding the case.” Rodgers v. State, 205 S.W.3d
525, 527 (Tex. Crim. App. 2006); see Kelly v. State, 824 S.W.2d 568, 573 (Tex.
Crim. App. 1992); see also TEX. R. EVID. 702. These conditions are commonly
referred to as qualification, reliability, and relevance. Vela v. State, 209 S.W.3d
128, 131 (Tex. Crim. App. 2006). Before admitting expert testimony, the trial court
must determine that all three conditions are met. Id.
B. Analysis
The State called Elizabeth Buhay, an analyst with the Department of Public
Safety’s Telephone Records Analysis Center (TRAC) as an expert to testify on the
approximate location of Peña’s cell phone and a cell phone linked to Williams
based on historical phone records and a list of the coordinates of Houston area cell
6

phone towers provided by carriers to law enforcement. The cell phone records
were admitted into evidence without objection during a detective’s testimony. The
detective testified that he sent the records to the TRAC analyst for mapping.
The trial court held a hearing outside the presence of the jury to consider
Williams’s motion to exclude Buhay’s testimony. At the hearing, Buhay testified
about her qualifications to opine on these subjects. She stated that she had worked
as a crime analyst for three years and was trained in cell phone mapping by the
FBI, the Department of Public Safety, and an outside company. During her career,
she had worked on hundreds of cases to identify the location of a cell phone using
records. Buhay testified that cell phones ping a nearby tower when in use and cell
phone records include the coordinates for the tower. Her job is to map the tower
locations using the coordinates provided in the cell phone records. The records are
uploaded digitally to a mapping software. She uses the software to create a map of
calls or texts over time or in a specific area.
Buhay testified that she employs these techniques on a daily basis. For this
particular investigation, she received a request from Texas Ranger P. Luna to
review phone records for three different cell phones. Although Luna provided her
with the records from the carrier, Buhay also requested the original records from
the carrier to verify her work. She determined the location of the phone when it
pinged a cell phone tower. She attached details from the call or text to each point,
7

including the time and the person the phone was contacting,1 and she plotted the
data on maps, showing where a particular phone was located throughout the day
and what cell tower it contacted when it was being used.
Williams argues that Buhay’s opinion was unreliable because she admitted
that there were newer software programs available to plot the data, and she was
unaware of the current program’s error rate. Texas Rule of Evidence 705(c)
governs the reliability of expert testimony. It states that “[a]n expert’s opinion is
inadmissible if the underlying facts or data do not provide a sufficient basis for the
opinion.” TEX. R. EVID. 705(c). The reliability inquiry is flexible, at times focusing
on the reliability of scientific knowledge, at other times on the expert’s personal
knowledge and experience. Vela, 209 S.W.3d at 134. Experience alone may
provide a sufficient basis for an expert’s testimony. Id. The proponent of the expert
must establish some foundation for the reliability of the expert’s opinion. Id.
To be considered reliable, evidence from a scientific theory must satisfy
three criteria: “(a) the underlying scientific theory must be valid; (b) the technique
applying the theory must be valid; and (c) the technique must have been properly
applied on the occasion in question.” Coble v. State, 330 S.W.3d 253, 273 (Tex.
Crim. App. 2010) (quoting Kelly, 824 S.W.2d at 573). When “soft” sciences are at
issue, the trial court must inquire “(1) whether the field of expertise is a legitimate 1 The investigator testified earlier in the trial that the cell phone records do not include the substance of the text messages.
8

one, (2) whether the subject matter of the expert’s testimony is within the scope of
that field, and (3) whether the expert’s testimony properly relies upon and/or
utilizes the principles involved in the field.” Id. (quoting Nenno v. State, 970
S.W.2d 549, 561 (Tex. Crim. App. 1998)). “This inquiry is somewhat more
flexible than the Kelly factors applicable to Newtonian and medical science.”
Coble, 330 S.W.3d at 273. The general principles announced in Kelly apply, but
the specific factors may, or may not apply depending on the context. Id. Under
both Kelly and Nenno, reliability should be evaluated with reference to the
standards applicable to the particular professional field in question. Id.
The task Buhay was called upon to perform was not complex and it was
verifiable. See Thompson v. State, 425 S.W.3d 480, 489 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d) (“The complexity of the technique employed in this case to
interpret the [cell phone] records is not great—[the witness] only needed to know
how the records were produced and what the data in each column signified.”);
Robinson v. State, 368 S.W.3d 588, 601 (Tex. App.—Austin 2012, pet. ref’d)
(“The analysis is straightforward and not particularly complex.”). Buhay was
tasked with mapping the location of cell phones using the location of towers
identified in each phone’s records. She testified that she was trained in cell phone
mapping, employed the techniques daily, and had three years of experience doing
it. The plotting software’s error rate did not impact the reliability of her opinions.
9

The cell phone records showed the exact tower to which the phone connected, and
Buhay testified that she checked the records for accuracy. See Thompson, 425
S.W.3d at 488–89 (rejecting challenge to expert opinion based on argument it was
possible defendant’s cell phone was located miles away from tower shown in
records). We conclude that the trial court did not abuse its discretion when it
determined that Buhay’s opinion on the general location of Williams’s and the
victim’s cell phones was reliable. We overrule William’s first issue.
II. Admissibility of Coconspirator’s Statements
Williams asserts that the trial court erred when it overruled his objections to
introduction of certain statements made by Robert Dike to Demond Walton.
Walton testified about what his cellmate, Robert Dike, told him while they were
incarcerated. Williams argues that the statements violated his rights under the
Confrontation Clause and were inadmissible hearsay.
A. Confrontation Clause
The Confrontation Clause prohibits the admission of “testimonial hearsay”
unless the declarant is unavailable to testify and the defendant had a prior
opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36,
53, 68 (2004); see U.S. CONST. amend. VI. Texas Rule of Evidence 801(d) defines
hearsay as a statement, other than one made by the declarant while testifying at a
trial or hearing, offered in evidence to prove the truth of the matter asserted. TEX.
10

R. EVID. 801(d). Testimonial statements include, at a minimum, “prior testimony at
a preliminary hearing, before a grand jury, or at a former trial” and “police
interrogations.” Crawford, 541 U.S. at 68; Woods v. State, 152 S.W.3d 105, 113
(Tex. Crim. App. 2004). Whether a statement is testimonial and therefore subject
to the accused’s right to confrontation is a question of law we review de novo. See
Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). In making the
determination whether a particular statement is testimonial, we consider whether
the statement was (1) ex parte in-court testimony or its functional equivalent,
(2) extrajudicial statements contained in formalized testimonial materials, or
(3) statements that were made under circumstances that would lead an objective
witness to reasonably believe that the statement would be available for use at a
later criminal prosecution. Melendez v. Massachusetts, 557 U.S. 305, 309–10
(2009) (quoting Crawford, 541 U.S. at 51–52); Langham, 305 S.W.3d at 576.
The Supreme Court specifically distinguished a defendant’s statements to
police from his statements to friends, noting that “[a]n accuser who makes a formal
statement to government officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not.” Crawford, 541 U.S. at 51.
Further, the Court has ruled that a statement is not testimonial if its primary
purpose is not to create an out-of-court substitute for trial testimony. Michigan v.
Bryant, 562 U.S. 344, 358 (2011) (noting that “the most important instances in
11

which the [Confrontation] Clause restricts the introduction of out-of-court
statements are those in which state actors are involved in a formal, out-of-court
interrogation of a witness to obtain evidence for trial”).
Williams argues that his coconspirator’s statement to Walton should be
considered testimonial based on a generalized idea that all statements one inmate
makes to another about a case are made with the knowledge that the statement
could be available for potential use at a later criminal prosecution. But the fact that
Dike and Walton were incarcerated at the time of their conversations did not make
the statements testimonial.2 Walton testified that he and Dike became friends while
in jail and as friends, they shared information about why they were in jail. Here,
the primary purpose of Walton’s statements to Dike was not to create an out-of
court substitute for trial testimony. See Espinoza v. Thaler, No. 2:11-CV-00146,
2012 WL 774989, at *8 (S.D. Tex. Mar. 8, 2012) (noting trial court’s finding that
recorded jailhouse phone conversations were not testimonial statements because
they were initiated by co-defendant, not by law enforcement, and such
conversations were co-defendant’s spontaneous statements to private persons). We 2 See Rodriguez v. State, Nos. 07-15-00412-CR & 07-16-00124-CR, 2016 WL 7439189, at *3 (Tex. App.—Amarillo Dec. 21, 2016, no pet.) (mem. op., not designated for publication) (noting that incarcerated declarant’s knowledge that phone conversation could be used in later criminal proceeding did not make recorded statements testimonial); see also Townsend v. State, No. 03-17-00495CR, 2018 WL 3978489, at *3 (Tex. App.—Austin Aug. 21, 2018, no pet.) (mem. op., not designated for publication) (recorded statements of defendant, co-defendant, and another inmate in three-way jailhouse phone call were not testimonial and made between acquaintances);
12

conclude that the statements were not testimonial, and the trial court did not violate
the Confrontation Clause by admitting Walton’s testimony into evidence.
B. Hearsay
Williams also argues that the trial court erred in admitting the testimony
because it was hearsay. Walton testified that Dike told him he and Williams
intended to rob Peña of drugs on the day of the murder.
Generally, the hearsay rule excludes any out-of-court statements offered by a
party at trial to prove the truth of the matter asserted in the statement. TEX. R.
EVID. 801(d) (defining hearsay); TEX. R. EVID. 802 (admissibility of hearsay);
Walter v. State, 267 S.W.3d 883, 889 (Tex. Crim. App. 2008). One of the
exceptions to the hearsay rule allows the admission of statements made against the
declarant’s interest. TEX. R. EVID. 803(24). This exception permits admission of a
statement that :
(a) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability or to make the declarant an object of hatred, ridicule, or disgrace; and
(b) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
Id. The rationale behind admitting these types of statements “stems from the
commonsense notion that people ordinarily do not say things that are damaging to
13

themselves unless they believe they are true.” Walter, 267 S.W.3d at 890. “[A]
reasonable person would not normally claim that he committed a crime, unless it
were true.” Id.
Rule 803(24) sets out a two-step foundation requirement for admissibility of
hearsay statements. Id.; Coleman v. State, 428 S.W.3d 151, 158 (Tex. App.—
Houston [1st Dist.] 2014, pet. ref’d). First, the trial court must determine whether
the statement subjects the declarant to criminal liability and whether the declarant
realized this when he made the statement. Walter, 267 S.W.3d at 890–91. Second,
the trial court must then determine whether sufficient corroborating circumstances
exist that clearly indicate the trustworthiness of the statement. Id. at 891.
Both statements that are directly against the declarant’s interest and
collateral “blame-sharing” statements that implicate both the declarant and others
may be admissible under Rule 803(24) if corroborating circumstances clearly
indicate their trustworthiness. Id. at 896. “Blame-shifting” statements that
implicate another person but minimize the declarant’s culpability are not
admissible under this rule, absent extraordinary circumstances. Id.; see also Guidry
v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999) (holding statements
inadmissible under Rule 803(24) because statements were “not so equally against
both [the declarant’s] and [the defendant’s] interests as [to] reach this level of
reliability”). The trial court is “obligated to parse a generally self-inculpatory
14

narrative and weed out those specific factual statements that are self-exculpatory or
shift blame to another.” Walter, 267 S.W.3d at 897.
The determination of whether corroborating circumstances clearly indicate
trustworthiness lies within the trial court’s discretion. Mason v. State, 416 S.W.3d
720, 734 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (citing Cunningham v.
State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994)). When analyzing the
sufficiency of corroborating circumstances, a number of factors are relevant:
(1) whether the guilt of the declarant is inconsistent with the guilt of the defendant;
(2) whether the declarant was so situated that he might have committed the crime;
(3) the timing of the declaration; (4) the spontaneity of the declaration; (5) the
relationship between the declarant and the party to whom the statement was made;
and (6) the existence of independent corroborative facts. Woods v. State, 152
S.W.3d 105, 113 (Tex. Crim. App. 2004); Coleman, 428 S.W.3d at 159. The first
two factors are not relevant when, as here, the statements are offered by the State
to inculpate the defendant. Woods, 152 S.W.3d at 113. The trial court may consider
evidence which undermines the reliability of the statement as well as evidence
corroborating its trustworthiness. Mason, 416 S.W.3d at 734 (citing Cunningham,
877 S.W.2d at 312).
We first consider whether the statements admitted by the trial court subject
Dike to criminal liability and whether he recognized that at the time he made the
15

statements. See Walter, 267 S.W.3d at 890–81. Walton testified that Dike told him
that he and Williams intended to rob the victim of marijuana. The statement places
Dike at the scene of the murder with Williams, and therefore subjects him to
criminal liability for attempted robbery at a minimum. The statement implicates
both Williams and Dike equally. See Walter, 267 S.W.3d at 899 (“[O]ut-of-court
statements from a co-defendant that are against the declarant’s penal interest but
also inculpate the defendant are viewed with some suspicion. That suspicion is
lessened when the speaker makes no distinction between his conduct and that of
the defendant—where there is absolute equality.”). The trial court could have
reasonably concluded that Dike recognized at the time he spoke with his cellmate
that admitting he intended to participate in a robbery was against his penal interest.
See Coleman, 428, S.W.3d at 160 (trial court could conclude that defendant knew
that telling his girlfriend he had participated in a murder was against his penal
interest). A reasonable person would have understood that admitting to attempted
robbery was against his interest.
We now must determine whether sufficient corroborating circumstances
indicate the trustworthiness of Dike’s statements to Walton. He spoke with Walton
while both were incarcerated in county jail. He made the statements gradually,
over time, as they became friends and in a private setting. See Woods, 152 S.W.3d
at 113 (“These were ‘street corner’ statements that Rhodes made to his friends
16

without any motive to shift blame to another or minimize his own involvement in
the murders.”); Dewberry v. State, 4 S.W.3d 735, 751–52 (Tex. Crim. App. 1999)
(considering, in holding that hearsay statements were admissible, that statements
were either spontaneously made or made in response to casual inquiries from
“friends and criminal acquaintances not connected to the commission of the
offense”).
The State also presented independent corroborative evidence that verified
Dike’s statements to Walton. The State introduced phone records that showed that
Williams was communicating with the victim up to the point of her death regarding
meeting up with her and purchasing marijuana. A cell record expert explained the
location of William’s phone during that conversation. The expert also opined that
Williams’s phone and the victim’s phone pinged the same cell tower at the nearest
time to the shooting. Evidence suggested a robbery was planned, including that a
gun was involved and law enforcement did not find two ounces of marijuana with
the victim. Law enforcement testified that they found less than a gram of
marijuana, instead of the two ounces that the victim intended to sell to Williams in
the parking lot. Williams and Dike were arrested together ten days later. Cell
phone tracking evidence showed that their phones were traveling together and that
they were together the day of the arrest. Finally, Dike and Walton’s conversations
occurred soon after the murder.
17

We conclude that the corroborating circumstances indicate the
trustworthiness of Dike’s statements to Walton. We hold that the trial court did not
abuse its discretion when it admitted Walton’s testimony concerning the statements
that Robert Dike made to him.
III. Supplemental issues
Williams contends that the evidence was legally and factually insufficient to
support his conviction. This issue was raised in a supplemental brief filed six
months after his original brief and more than three months after the State submitted
its response brief.3 All issues an appellant wishes to raise must be raised in the
original briefs. TEX. R. APP. P. 38.1; Garrett v. State, 220 S.W.3d 926, 928 (Tex.
Crim. App. 2007); Randle v. State, 878 S.W.2d 318, 319 (Tex. App.—Houston [1st
Dist.] 1994, pet. ref’d) (citing Rochelle v. State, 791 S.W.2d 121, 124 (Tex. Crim.
App. 1990)). We do not address the sufficiency of the evidence because Williams
has not explained why this issue was not included in the original brief or why it
must be addressed in the interest of justice. See TEX. R. APP. P. 38.7; Randle, 878
S.W.2d at 319.

Outcome: We affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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