AUSTIN, Texas (CN) — A split criminal appeals court reversed a Texan’s capital murder conviction and sentence for an alleged revenge killing, finding prosecutors relied heavily on improperly admitted text messages.
A McLennan County jury in July 2013 convicted Albert Leslie Love Jr. of capital murder for the shooting deaths of Keenan Hubert and Tyus Sneed. The trial judge sentenced Love to death.
In a 6-3 ruling on Dec. 7, the Court of Criminal Appeals reversed and remanded the judgment and death sentence.
Judge Kevin Yeary wrote for the majority that the errors Love raised on appeal, specifically the warrantless seizure of his text messages, were sufficient to merit reversal.
The nine-member Court of Criminal Appeals is the court of last resort for criminal matters in Texas.
According to the 32-page ruling, replete with 11 pages of text messages, Hubert and Sneed were in a car owned by Deontrae Majors that was parked in the Lakewood Villas Apartments in east Waco when the car was hit by a hail of gunfire on March 28, 2011. Hubert and Sneed were each shot eight times and died in the back seat.
Majors and another occupant, Marion Bible, who were both wounded, escaped from the car and allegedly were pursued by Rickey Cummings, a friend of Love. Cummings stopped his pursuit when his .45-caliber gun jammed.
Evidence showed that the attackers most likely used an AK-47 and other weapons. Love was among three men who were seen at the complex at the time of the attack. He matched the description of a heavy-set man carrying a long gun. He had tried to buy an AK-47 in the weeks before killings, according to trial evidence.
State prosecutors argued at trial that Hubert’s murder was a revenge killing for the April 8, 2010 death of Emuel Bowers III, who was shot while sitting in his car at a Waco park. Love and Cummings were close friends of Bowers, who they believed was killed by Keenan Hubert. Police found no evidence that Hubert was responsible for Bowers’ death, which frustrated Love and Bowers’ friends and family, prosecutors said.
Love argued on appeal that the trial court erred in admitting his cellphone records, in violation of the Fourth, Sixth and Fourteenth Amendments. He said the records were seized without a warrant supported by probable cause.
Prosecutors responded that the records, consisting of 1,600 text messages on Love’s cellphone, were legally obtained through a court order.
Judge Yeary wrote for the appellate court last week: “The question in this case is whether appellant had an expectation of privacy in his service provider’s records of his cellphone use, and whether society would regard that expectation as reasonable or justifiable under the circumstances.”
Yeary answered the question by citing recent surveys: “Empirical data seem to support the proposition that society recognizes the propriety of assigning Fourth Amendment protection to the content of text messages.”
He concluded that “the content of appellant’s text messages could not be obtained without a probable cause-based warrant. Text messages are analogous to regular mail and email communications. ... We hold that appellant had a reasonable expectation of privacy in the contents of the text messages he sent.”
Yeary applied the “harmless error” test to a sample of the 1,600 text messages the state used in prosecuting Love.
Some of the texts suggest a motive of revenge for Bowers’ murder, that Love went into hiding after the Hubert and Sneed killings, and that he tried to dispose of the murder weapon.
Prosecutors also used Love’s texts to suggest he had “pride in being a killer” and that he was looking for an alibi for the night of the murders.
Yeary noted that the state had other evidence besides Love’s text messages, but it was less critical.
“While this independent, circumstantial evidence suggests that appellant was involved in the crime, the strongest evidence of his guilt came from the improperly admitted text messages. Further, the State relied heavily on these messages to prove its case. …
“The State said that appellant’s guilt ‘will be shown to you through his own words and his own phone records.’ The State spent considerable time detailing specific text messages, interpreting them, and pointing out how they proved appellant’s guilt. The State argued that the strongest evidence of appellant’s guilt came from appellant’s ‘confession’ via his text messages.”
Yeary concluded that “the probable impact of the improperly admitted text messages was great. As we cannot determine beyond a reasonable doubt that the text messages did not contribute to the jury’s verdict at the guilt phase, we hold that the error was not harmless.”
Judge Sharon Keller filed the dissenting opinion, in which Judge Barbara Hervey joined. Judge Lawrence Meyers also dissented.
Many of the text messages cited in the complaint appear to be incriminating.
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