Carter Carol Cervantez v. State

Citation: Not availableDocket: 02-16-00224-CR

Court: Court of Appeals of Texas; November 7, 2018; Texas; State Appellate Court

Original Court Document: View Document

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Carter Carol Cervantez appeals her jury conviction for capital murder and automatic life sentence, presenting three points: (1) denial of her attorney's motion to withdraw due to the State's alleged noncompliance with the Michael Morton Act, (2) admission of recorded statements from her accomplice without the opportunity for cross-examination, and (3) denial of her motions to suppress evidence. The Court of Appeals affirms the conviction.

Cervantez does not contest the evidence's sufficiency, which shows she and her boyfriend, Clarence David Mallory, attacked assistant store manager Ashlea Harris, bound her, and set fire to her apartment and body. They were former employees of American Eagle Outfitters and suspected of stealing nearly $18,000 from the store. Evidence suggests they also attempted to burglarize the store the following day. Witnesses observed a black Infiniti near the crime scene, linking it to Cervantez, who fled the mall but was later found at her apartment.

The Court discusses the denial of attorney Bill Ray's motion to withdraw, which was based on the late provision of discovery items by the State. Cervantez argues this situation is unprecedented and hindered her defense. However, the court limits its review to whether the trial judge abused discretion in denying the motion to withdraw, rather than addressing the denial of a continuance.

The trial court's review of Attorney Ray’s motion to withdraw is conducted under an abuse of discretion standard. The court must weigh the claims made against the risk of hindering judicial processes or justice administration. The Michael Morton Act mandates the State to provide discovery to defendants promptly upon request, including a written acknowledgment of provided materials before trial. However, no specific remedy is outlined for delays in discovery under this statute.

In the case at hand, Attorney Ray indicated to the trial court that the State had only disclosed 162 items to the defense less than 40 days before trial, with 46 to 48 items disclosed less than 30 days prior. The State countered that some items had been available since 2014 and 2015, and cited difficulties during a transition to a new electronic discovery system. Ray specifically mentioned a GPS unit, which the State had since January 2015 but which he was unaware of until April 15, 2016. He filed a motion to suppress data potentially related to this GPS unit and associated cell phone records. Although the State asserted it would not use the GPS records, Ray indicated that testing results could influence his motion regarding cell phone data. When asked if he was making a Brady request, he affirmed it. The State clarified that while analyses were ongoing, it did not have a report until shortly before the trial and stated that Ray could have requested the information at any time.

The report indicated that no discernible information could be extracted from the hard drive or chip within the system related to the case. Detective Randolph communicated that the software owners confirmed no further actions could be taken on the analysis. Attorney Ray expressed concerns about readiness for trial due to late discovery items, stating he struggled to manage the influx of information. The trial judge acknowledged Ray's long-term involvement in the case and denied his request for a continuance, asserting confidence in the competence of the defense attorneys. The judge noted that while there was a significant amount of information, not all would be admissible, and the defense had sufficient time to review the discovery materials. The only evidence suppressed was related to an Amazon search warrant due to compliance issues. Ray's attempt to withdraw from representation was denied by the trial court, which affirmed that Ray had not acted ineffectively since Cervantez did not raise an ineffectiveness claim on appeal. The records showed Ray had represented Cervantez for over a year and sought to withdraw shortly before trial. The trial court's decision to deny the motion to withdraw was deemed appropriate given the timing and circumstances.

Ray and Gordon aimed to demonstrate that police could not conclusively place Cervantez at Harris's apartment solely based on her driving a black Infiniti during a two-week trial. Ray filed four motions to suppress evidence, two of which directly supported this defense, challenging various pieces of evidence linked to Cervantez, including GPS data, cell phone records, DNA evidence, bank records, and photographs. The trial court denied Ray's motion to withdraw, finding no abuse of discretion, as Ray failed to specify how the delay in obtaining evidence impacted the case, except for the GPS data, which the court would have suppressed anyway. 

Cervantez argued that the trial court erred in admitting an audio recording from Mallory's cell phone, which included his background conversation with her regarding parking at the mall, claiming it violated her Confrontation Clause rights since she could not cross-examine Mallory. The State contended that Cervantez’s objection was untimely. Initially, she did not object when the audio was admitted, but raised an objection when the State attempted to replay the audio. The trial court, although initially deeming the objection untimely, allowed for arguments on its merits and ultimately ruled the audio admissible as nontestimonial. Given the circumstances of the objection and the trial court's consideration of the issue, the appellate court agreed to review this point.

Cervantez's Sixth Amendment rights were not violated by the admission of Mallory's audio statements in State's Exhibit 372 during trial. She argued that the publication infringed her right to confrontation, relying on precedents concerning accomplice confessions to law enforcement, which are considered testimonial. However, the court distinguished these cases, asserting that Mallory's statements were nontestimonial and did not arise from a reasonable belief that they would be used at trial. The context of the video evidence indicated it documented a plan to commit theft rather than formal testimony.

Additionally, Cervantez challenged the trial court's denial of her motions to suppress evidence obtained through nine search warrants, arguing the warrants lacked probable cause as they did not definitively link the black Infiniti observed by witnesses to her vehicle. The court upheld the magistrate's probable cause determination, stating that the sufficiency of the affidavit should be evaluated based on its content and reasonable inferences drawn by the magistrate. The review focused on the four corners of the affidavit, applying a common-sense interpretation.

Probable cause is established when a reasonable person would believe, based on the affidavit's facts, that items to be seized are present in a specified location. In reviewing a magistrate's probable cause determination, only the facts in the affidavit and reasonable inferences from those facts are considered, not omitted facts or alternative interpretations. Cervantez challenges the trial court's denial of her motions to suppress evidence obtained from nine search warrants, arguing that the warrants failed to adequately connect a black Infiniti seen at the crime scene to her vehicle.

The warrants are divided into two groups:

1. **First Group**: This includes the capital murder arrest warrant, the DNA warrant, and two warrants to search Cervantez's apartment. The affidavits are detailed and include critical information: Harris, a store employee, previously reported Cervantez and another suspect for stealing from the store; a neighbor identified a black Infiniti near the crime scene; another neighbor heard disturbances around the time of the murder; Cervantez owns a 2008 black Infiniti; police tracked her movements the day after the murder; and a police officer confirmed the vehicle's identity through a photograph.

2. **Second Group**: This includes warrants to search Cervantez's cell phone, car, and GPS. These affidavits are less detailed and lack the identification of Cervantez's Infiniti by the neighbor. They detail similar events, including sightings of a black Infiniti leaving the crime scene, the prior theft report against Cervantez and Mallory, and suspicious behavior observed at Hulen Mall, but do not provide direct identification of the vehicle involved in the murder. 

Overall, the First Group of warrants contains more compelling connections to support probable cause than the Second Group.

The affidavits presented provide adequate grounds for issuing nine search warrants based on a substantial basis that searches would yield evidence of wrongdoing. Specifically, eyewitness testimony linked Cervantez’s car to the vicinity of a murder scene. Additional context included reports from Harris, a former employee, who identified both Cervantez and Mallory as suspects in a theft prior to their termination, and noted that Cervantez owned a black Infiniti. This combination of evidence was deemed sufficient for a reasonable person to infer the presence of murder evidence in Cervantez’s apartment.

Cervantez's argument that no direct evidence placed her at the crime scene was rejected, as it is not necessary for police to demonstrate a suspect’s presence at the scene to obtain a warrant. The legal standard for probable cause is based on probabilities rather than certainties. The affidavits for a second set of warrants, while lacking specific identification of Cervantez’s car, still met the threshold for probable cause, as the courts do not require focusing on omitted facts. The analysis concludes that the facts in both groups of affidavits supported a fair probability of finding evidence, leading to the affirmation of the trial court’s judgment against Cervantez.