Opinion
No. 05-15-00119-CR No. 05-15-00120-CR No. 05-15-00121-CR
05-23-2016
ANTONIO HERRERA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F-1142288, F-11-42289, F-11-42290
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Whitehill
This aggravated child sexual abuse case involves two issues: (1) Did the trial court erroneously deny appellant's motion to dismiss for violating his right to a speedy trial because the delay in arresting and prosecuting him caused an inability to obtain and present exculpatory evidence, and (2) did the trial court erroneously quash appellant's subpoena duces tecum served on non-resident, third-party Facebook seeking content and subscriber information from the victim's Facebook account because the Stored Communications Act (SCA) did not preclude appellant from discovering that information.
As discussed below, we affirm because (1) the speedy trial delay is measured from when the accused is arrested or accused and the Barker factors do not weigh in favor of dismissal for the twenty month delay at issue here, as measured from appellant's arrest, and (2) the trial court did not erroneously quash the Facebook subpoena, regardless of whether the SCA applies to the requested content, because appellant did not meet the requirements for securing the attendance of out-of-state witnesses.
I. Background
On November 8, 2011, appellant's seventeen year old grandson made an outcry about appellant's sexual abuse of him eleven years earlier. That same day, affidavits were signed for arrest warrants and a magistrate determined that there was probable cause to issue the warrants. According to appellant, however, he was arrested in either March or April 2013 and made bond on April 11, 2013.
On May 20, 2013, appellant was charged in three separate indictments with aggravated sexual assault of a child under fourteen years of age for conduct that occurred in the summer of 2000.
Prior to trial, appellant served a subpoena duces tecum on third party Facebook at its California headquarters to obtain communications from the victim's Facebook account. When Facebook refused to comply, the trial court ex parte ordered it to do so and made findings of fact and conclusions of law.
Facebook then moved to quash the subpoena and to vacate the court's ex parte order, arguing that (i) the Stored Communications Act (SCA) prohibits disclosure of the requested information and (ii) the subpoena was improperly issued in Texas to a California corporation. Appellant responded that (i) the victim consented to disclosure pursuant to the Facebook terms of use and (ii) an exception to the SCA applied. Appellant also said that he would have subpoenaed the information directly from the victim had Facebook been willing to issue a "preservation order" to stop the potential evidence destruction. Appellant did not identify the information he thought he might find in the Facebook account, but he described it as "possible exculpatory evidence."
18 U.S.C §2701 et. seq.
Appellant's counsel told the court that his client was the source of his information about the Facebook evidence and his client would not consent to disclosing the communication with counsel.
After a hearing based on counsel's arguments, the trial court granted Facebook's motion. The trial court then entered new findings of fact and conclusions of law that, in essence, said that: (i) appellant subpoenaed both subscriber content and non-content records pursuant to an exception in the SCA; (ii) the exception to the SCA appellant relied on (regarding the disclosure of content to the National Center for Missing and Exploited Children) did not apply; (iii) the SCA permits only governmental entities to obtain subscriber content via a warrant, and (iv) appellant was entitled to the non-subscriber records but not the content information. Appellant objected to these findings of fact and conclusions of law.
From the time of appellant's arrest until final resolution, both parties agreed to pass and re-set the case twenty-three times. After the fourteenth pass, appellant on June 18, 2014, filed a speedy trial demand. After the case was passed and re-set twice more by agreement, appellant on July 6, 2014, filed a motion to dismiss for violating his speedy trial right.
The trial court held a hearing on the motion to dismiss, during which the trial court heard counsel's arguments but neither party presented any witnesses. The trial court then denied that motion.
On December 10, 2014, pursuant to plea agreements, appellant pled no contest to the offenses charged in the indictments. The court deferred adjudication and placed appellant on community supervision for ten years in each case.
Appellant now appeals the trial court's rulings on his motion to dismiss and on Facebook's motion to quash.
II. Analysis
A. Issue One: Was it error to refuse to dismiss the case for a violation of appellant's Sixth Amendment right to a speedy trial when there was a twenty month delay between the time appellant was formally accused and the time of trial?
Appellant asserts that the trial court erred in denying his motion to dismiss because his Sixth Amendment right to a speedy trial was violated. According to appellant, the State's alleged delay in arresting and prosecuting him led to possible evidence destruction and an inability to locate essential witnesses.
1. Standard of Review.
In reviewing the trial court's ruling, "we give almost total deference to historical findings of fact of the trial court that the record supports and draw reasonable inferences from those facts necessary to support the trial court's findings." Gonzales v. State, 435 S.W.3d 801, 808-09 (Tex. Crim. App. 2014). But we review de novo "whether there was sufficient presumptive prejudice to proceed to a Barker analysis and the weighing of the Barker factors, which are legal questions." Id. at 809. Because the State prevailed below, we presume that the trial court resolved disputed fact issues in the State's favor and defer to any implied fact findings the record supports. Munoz v. State, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).
The Barker factors are used analyze speedy trial claims. See Barker v. Wingo, 407 U.S. 514, 530 (1972).
2. Constitutional Standards.
The Sixth Amendment to the United States Constitution guarantees an accused the right to a speedy trial in a criminal case. U.S. CONST. amend. VI; Cantu v. State, 253 S.W.3d 273, 280 & n. 16 (Tex. Crim. App. 2008). If an accused's speedy trial right is violated, the proper remedy is to dismiss the prosecution with prejudice. Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App. 2003) (citing Strunk v. United States, 412 U.S. 434, 440 (1973), and Hull v. State, 699 S.W.2d 220, 224 (Tex. Crim. App. 1985)).
Whether an accused's speedy trial rights have been violated requires a court to balance four factors: "(1) the length of the delay, (2) the State's reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to the defendant because of the length of delay." Gonzales, 435 S.W.3d at 808 (citing Barker, 407 U.S. at 530).
A court, however, does not conduct this analysis unless the accused makes an initial showing that "the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay." Id. (quoting Doggett v. United States, 505 U.S. 647, 651-52, (1992). Presumptive prejudice, "simply marks the point at which courts deem the delay unreasonable enough to trigger [further] enquiry." Id. (quoting State v. Munoz, 991 S.W.2d 818, 821-22 (Tex. Crim. App. 1999)).
The Gonzales court further held, "[t]hus, if the State prosecuted the accused with 'customary promptness,' the accused has failed to meet the threshold burden, but if the defendant can make a threshold showing of presumptive prejudice, a court must then proceed to consider each of the remaining Barker factors and weigh them." Id.; see also State v. Jones, 168 S.W.3d 339, 347 (Tex. App.—Dallas 2005, pet. ref'd) (unless delay is "presumptively prejudicial," courts need not inquire into other Barker factors).
3. Does the twenty month delay trigger a Barker analysis?
Appellant argues that the length of delay between the 2011 investigation and his 2013 arrest "exceeds the time period . . . assumed to be presumptively prejudicial." But the length of delay is measured from when the defendant is arrested or formally accused, not from when the investigation began. See Harris v. State, 827 S.W.3d 949, 956 (Tex. Crim. App. 1992). Appellant was arrested in March or April 2013, so we measure the length of delay from that date. See State v. Thomas, 453 S.W.3d 1, 4 (Tex. App.—Dallas 2014, no pet.); see also United States v. Marion, 404 U.S. 307, 321-22 (1971) (declining to extend the reach of the speedy trial provision to the period prior to arrest).
No "set time element" triggers a Barker analysis. Cantu, 253 S.W.3d at 281; State v. Tatom, No. 05-14-01246-CR, 2015 WL 4931445, at * 4 (Tex. App.—Dallas Aug. 8, 2015, no pet.) (mem. op.). The length of delay necessary to provoke further inquiry depends on the facts of each case, and the tolerable delay for "an ordinary street crime" is considerably less than for "a serious, complex conspiracy charge." Barker, 407 U.S. at 530-31; see also Doggett, 505 U.S. at 653 (delay exceeding eight years in a felony case excessive); Gonzalez, 435 S.W.3d at 809 (felony case six-year delay excessive); Shaw, 117 S.W.3d at 889 (delay approaching one year in felony case sufficient to trigger Barker inquiry). In general, a post-accusation delay of about one year is presumptively prejudicial for purposes of the length-of-delay factor. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).
Here, approximately twenty months elapsed from the time appellant was arrested until he on December 10, 2014, pled nolo contendere in negotiated pleas that resolved his case. We conclude that delay is sufficient to trigger a Barker inquiry, and that the delay weighs slightly against the State.
4. Does the weight of the Barker factors support a speedy trial violation in this case?
How far beyond the minimum does the delay extend?
Having concluded that the delay triggered a Barker analysis, we consider the extent to which the delay stretched beyond the bare minimum needed to trigger judicial examination of the claim. See Doggett v. United States, 505 U.S. 647, 652 (1992).
Here, the delay between the time of arrest and trial was twenty months, which is eight months more than the one-year minimum that typically triggers the enquiry. While not excessive, this factor weighs slightly against the State.
Reason for Delay
We next examine the reason for the delay. Gonzales, 435 S.W.3d at 808. The State has the burden of justifying the delay. See Cantu, 253 S.W.3d at 280-81.
When assigning weight to the State's justifications for delay, different reasons deserve different weights. Barker, 407 U.S. at 531; Shaw, 117 S.W.3d at 889. For example, intentional prosecutorial delay weighs heavily against the State, while more "neutral" reasons, such as negligence or overcrowded dockets, weigh less heavily against it. Zamorano, 84 S.W.3d 649 (quoting Barker, 407 U.S. at 531). Absent an assigned reason for the delay, "a court may presume neither a deliberate attempt on the part of the State to prejudice the defense nor a valid reason for the delay." Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).
Here, appellant was arrested in March or April 2013. From July 18, 2013 to October 30, 2014, the parties appeared to pass and re-set the case twenty-three times. As reflected on the pass slips, the reasons for the passes include change of counsel, investigation, discovery, subpoena issues, and pre-trial motions. Because this delay was by mutual agreement, it carries no weight against either party. See State v. Kuri, 846 S.W.2d 459, 463 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd) (delay from trial resets excluded from computation).
From September 2014 through December 2014, appellant was engaged in plea negotiations. Although appellant initially agreed to a plea, he withdrew his consent in an attempt to resolve a Denton County aggravated sexual assault case with these three Dallas County cases. Appellant ultimately negotiated pleas to resolve these Dallas County cases in December 2014. Ordinarily, delay caused by good faith plea negotiations is not a "deliberate attempt to delay the trial." See Barker, 407 U.S. at 531; see also State v. Munoz, 991 S.W.2d 818, 825 (Tex. Crim. App. 1999) (delay from good faith plea bargaining is not weighed against the State). But this period of delay weighs slightly against appellant because he himself extended this process by approximately three months.
Assertion of the Right
While no defendant must bring himself to trial, all defendants who want a speedy trial must assert their desire for one. Cantu, 253 S.W.3d at 282-83. It is well-established that a request for a dismissal rather than for a speedy trial "shows a desire to have no trial at all instead of a speedy trial." Cantu, 253 S.W.3d at 283; Goff v. State, No. 05-13-0076-CR, 2014 WL 259668, at *3 (Tex. App.—Dallas Jan. 22, 2014, no pet.) (mem. op.); Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App.—Fort Worth 1997, no pet.).
Here, although he was arrested in March or April 2013, appellant did not demand a speedy trial until June 18, 2014. Then, less than a month later, on July 16, 2014, he moved to dismiss for violating his speedy trial right. Thus, while the right was technically asserted before requesting dismissal, the proximity in time between these two actions does not make a strong case for appellant's meaningful assertion of the right.
At the August 22, 2014, hearing on the motion, defense counsel told the court that there were some witnesses that both parties wanted that were not available that day. As a result, the case was passed that day, and then later seven more times.
Therefore, although appellant asserted his speedy trial right, the record does not reflect behavior consistent with his insisting on exercising that right. We assign this factor neutral weight in our analysis.
Prejudice
We assess prejudice in light of the interests that the speedy trial right was designed to protect: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the accused, and (iii) limiting the possibility that the defense will be impaired. Gonzales, 435 S.W.3d at 812. Of these types of prejudice, the last is the most serious because a defendant's inability to adequately prepare his case skews the fairness of the entire system. Cantu, 253 S.W.3d at 283.
Ordinarily, the defendant must make some showing of prejudice, although a showing of actual prejudice is not required. Munoz, 991 S.W.2d at 826; State v. Smith, 76 S.W.3d 541, 551 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). When the defendant shows prejudice, the burden shifts to the State to show that the defendant suffered "no serious prejudice beyond that which ensued from the ordinary and inevitable delay." Munoz, 991 S.W.2d at 826; Smith, 76 S.W.3d at 551; Whitfield v. State, 137 S.W.3d 687, 691 (Tex. App.—Waco 2004, no pet.).
Here, appellant did not testify at the hearing. And his brief acknowledges that he spent very little time in jail. But he claims the bond restrictions were onerous and restricted his ability to attend church, which caused him great anxiety. Courts generally recognize that a defendant suffers anxiety when accused of a crime. See Abraham v. State, 330 S.W.3d 326, 333 (Tex. App.—Dallas 2009, pet. dism'd). Yet general anxiety alone is not sufficient proof of prejudice when it is no greater than the level normally associated with a criminal charge. Cantu, 253 S.W.3d at 285-86; State v. Jolly III, 446 S.W.3d 613, 617 (Tex. App.—Amarillo 2014, no pet.); Smith v. State, 436 S.W.3d 353, 367-68 (Tex. App.—Houston [14th Dist.] 2014, pet ref'd). There is no evidence here to demonstrate that appellant's anxiety was greater than the level normally associated with a criminal investigation.
Prior to this motion, the court conducted a hearing on appellant's motion complaining about his bond conditions, and determined that the conditions were not unreasonable.
We next examine whether the delay impaired appellant's ability to present a defense. This is the most serious manifestation of prejudice because the inability of a defendant to adequately prepare his case skews the fairness of the entire system. Dragoo, 96 S.W.3d at 315.
Appellant identified seven witnesses that he could not locate. All of these witnesses were former Child Protective Services employees. Although appellant relies on the time period before his arrest to establish delay, this is not the relevant time period. See Thomas, 453 S.W.3d at 4. Using the correct post-arrest measurement, there is no evidence that the elapsed time March-April 2013 arrest and the case's resolution in December 2014 resulted in appellant's inability to locate witnesses.
Appellant also contends that the eleven years that elapsed between the conduct and the outcry is a "concurrent cause to the prejudice to his ability to present a defense." While we do not dispute that the passage of time may have presented challenges, the time between the conduct and the outcry is not material to a speedy trial analysis. See Harris, 827 S.W.3d at 956 (measuring delay from time of formal arrest or accusation).
More important, however, there is no evidence that the witnesses appellant could not locate in August 2014 would have remained unavailable at the time of trial. Accordingly, there is no basis to conclude that the twenty month delay prejudiced appellant's defense. We therefore assign the prejudice factor neutral weight.
5. Balancing the Barker Factors
Balanced together, we conclude that the Barker factors do not support dismissal. The length of delay weighs only slightly against the State, and the reason for delay weighs only slightly against appellant. The remaining factors are neutral. Accordingly, we conclude that appellant's speedy trial right was not violated, and the trial court did not err in denying the motion to dismiss. We thus decide appellant's first issue against him.
B. Issue Two: Did the trial court abuse its discretion by quashing the Facebook subpoena?
Appellant's Facebook subpoena sought both content and subscriber information from the minor victim's account. Applying the SCA, 18 U.S.C § 2701 et. seq., the trial court quashed the subpoena as to content, but not subscriber information. Appellant asserts that the trial court erred in quashing the subpoena as to content because the SCA does not apply to Facebook and the statute is unconstitutional as applied. But we need not determine the SCA based issues because the subpoena did not comply with the statutory requirements for compelling the attendance of out-of-state witnesses.
Appellant did not make these arguments at the hearing on the motion to quash, but they are included in his objections to the trial court's findings of fact and conclusions of law.
1. Standard of review and applicable law
We review the trial court's decision to quash a subpoena for an abuse of discretion. See Drew v. State, 743 S.W.2d 207, 225 n. 11 (Tex. Crim. App. 1987); Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.—Fort Worth 2006, pet. ref'd). A trial court abuses its discretion in quashing a subpoena if the defendant makes a plausible showing that the witness's testimony would be both material and favorable to the defense. See Coleman v. State, 966 S.W.2d 525, 527-28 (Tex. Crim. App. 1998).
In addition, although there is no general right to discovery in a criminal case beyond exculpatory evidence that the State is constitutionally obliged to disclose, whether certain evidence is discoverable "is left to the discretion of the trial judge." McBride v. State, 838 S.W.2d 248, 250 (Tex. Crim. App. 1992).
Here, the trial court also made findings of fact and conclusions of law. In general, when a trial court makes explicit findings of fact, an appellate court determines whether the evidence, viewed in the light most favorable to the ruling, supports those findings. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006) (review of motion to suppress). The appellate court then reviews the trial court's legal conclusions de novo and upholds the ruling if it is supported by the record and correct under any legal theory applicable to the case. State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008) (motion to suppress).
As discussed below, the trial court did not abuse its discretion by quashing the subpoena because appellant did not comply with the procedure for obtaining an out of state witness's attendance.
Article 24.02 of the Code authorizes the issuance of a subpoena duces tecum to direct a particular witness to produce in court writings or other things in his possession. See TEX. CODE CRIM. PROC. ANN. art. 24.02. Article 24.02, however, does not require the "pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony." Welch v. State, No. 06-10-00020-CR, 2011 WL 1364970, at *7 (Tex. App.—Texarkana Apr. 12, 2011, pet. ref'd) (mem. op., not designated for publication) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 52-53 (1987), discussing a party's Confrontation Clause rights). Rather, as our sister court of appeals has described it, "a subpoena duces tecum is not to be used as a discovery weapon, but as an aid to discovery based upon a showing of materiality and relevance." Cruz v. State, 838 S.W.2d 682, 686 (Tex. App.—Houston [14th Dist.] 1992, writ ref'd).
In this case, although the subpoena included a duces tecum, it also called for a California witness to physically appear in Texas. Although the Texas Constitution recognizes that criminal defendants have a right to compulsory process for obtaining witnesses, that right is subject to the trial court's discretion. Ortegon v. State, 267 S.W.3d 537, 542 (Tex. App.—Amarillo 2008, pet. ref'd) (citing Drew v. State, 743 S.W.2d 207, 225 n. 11 (Tex. Crim. App. 1987)); see TEX. CONST. art. I, § 10. For out of state witnesses, Texas has adopted the Uniform Act to Secure Attendance of Witnesses from Without State. TEX. CODE CRIM. PROC. ANN. art. 24.28. The statute provides that:
If a person in any State, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this State, [and that person] is a material witness in a prosecution pending in a court of record in this State, or in a grand jury investigation which has commenced or is about to commence, a judge of such court [in this state] may issue a certificate under the
seal of the court stating these facts and specifying the number of days the witness will be required. This certificate shall be presented to a judge of a court of record in the county of such other state in which the witness is found.Id. § 4(a) (Emphasis added).
California has identical legislation. See CAL. PEN. CODE §1334.2. Thus, California and Texas have both "made provision[s]" for out of state witnesses under the uniform act.
To subpoena an out of state witness in California, the Texas trial judge must first determine that the witness is material and necessary. See Ashby v. State, 646 S.W.2d 641, 643 (Tex. App.—Fort Worth 1983, writ ref'd); see also Johnson v. State, 746 S.W.2d 791, 794 (Tex. App.—Corpus Christi 1987, writ ref'd) (must establish testimony is material and necessary). If materiality is established, the Texas court then issues a certificate stating that finding and specifying the number of days the witness will be required. TEX. CODE CRIM. PROC. ANN. art. 24.28 (4) (a).
In addition, the Texas court is required to order:
the payment of witness fees authorized by law for each day the witness is required to attend the court plus reimbursement for any additional expenses of the witness which the court shall find reasonable and necessary.TEX. CODE CRIM. PROC. ANN. art. 24.28 (4) (b); see also CAL. PEN. CODE §1334.3(a).
The Texas court's certificate is then presented to a court in the California witness's county. TEX. CODE CRIM. PROC. ANN. art. 24.28 (4)(a); CAL. PEN. CODE §1334.2. When the certificate is presented to the California court, the court conducts a hearing and directs the witness to appear at that hearing. CAL. PEN. CODE §1334.2. The California court will issue a subpoena upon determining at the hearing that: (i) the witness is material and necessary, (ii) it will not cause the witness undue hardship to appear in the foreign state, (iii) the laws of the foreign state protect the witness from arrest and service of process, and (iv) the judge of the foreign state will order compensation for travel and other reasonable and necessary fees. See id. The subpoena issued by the California court is to have the foreign court's certificate attached. Id. The California court treats the Texas court's certification as prima facie evidence of all facts stated in the certification. CAL. PEN. CODE §1334.2; Vannier v. Superior Court, 650 P.2d 302, 306-07 (Cal. 1982).
2. The Record
Although the trial court's findings do not reference non-compliance with article 24.28, Facebook's motion to quash included an objection to the subpoena for non-compliance with this statute, the State mentioned the issue in its brief, and the issue was briefly argued at the hearing. We therefore begin our inquiry by examining whether the subpoena met the statutory requirements for securing the attendance of an out-of-state witness.
In the court below, appellant argued that article 24.28 does not apply to a request for records, but he does not advance this argument on appeal. Moreover, at least one of our sister courts has concluded that article 24.28 applies to a subpoena duces tecum issued to an out-of-state witness. See Reader's Digest Ass'n v. Dauphinot, 794 S.W.2d 608, 610 (Tex. App.—Fort Worth 1990) (orig. proceeding).
The record before us establishes that appellant did not comply with the statute. There is no application for an out-of-state subpoena. See generally, Weaver v. State, 657 S.W.2d 148,150 (Tex. Crim. App. 1983) (discussing pre-trial hearing on motion for application for out of state witness subpoenas). There was also no hearing to determine whether Facebook was a material witness and whether the court would certify to a California court that Facebook should be subpoenaed in California. See TEX. CODE CRIM. PROC. ANN. art. 24.28. Because there was no certification, nothing was presented to the California court. Instead, the subpoena was issued from a Texas court without an address or even a reference to the fact that Facebook was an out-of-state witness. It is unclear whether the subpoena was mailed or personally served, but there is no dispute that Facebook was served at its California headquarters.
While the trial court did make findings in the order directing Facebook to comply with the subpoena, the findings were made ex parte, and there is no record evidence supporting such findings. Moreover, these findings were made after the subpoena had issued.
The document signed by the trial court entitled "Proposed Findings of Fact and Order" finds, in pertinent part that: (1) the evidence is relevant; (2) the evidence has a sufficient probability of being exculpatory; and (3) the request is reasonably limited in scope and content.
At the hearing on the motion to quash, appellant made no showing as to the nature of the content he believed to exist, or that the information was material. There was no sworn evidence and there were no agreed facts. Thus, appellant's argument that the requested information was potentially exculpatory is speculative.
Appellant's brief states that he discovered through an investigator that there were conversations between the victim and a family member that would prove appellant's assertion that the charges against him had been fabricated. There is, however, no evidence in the record to support this assertion.
Appellant asserts that Facebook offered no evidence to dispute the court's prior findings, and to the extent that the order granting the motion to quash amends the court's prior findings it was "without evidentiary support." As we have noted, the findings were entered ex parte and are without evidentiary support. The improperly issued subpoena is in the record, as is the admission that it was served on Facebook in California. That evidence is enough to establish that the subpoena was not properly issued and served.
In addition, there is no evidence in the record to support the trial court's October 28, 2014 findings and conclusions regarding the SCA. --------
There is nothing to establish that appellant complied with article 24.28 in any regard or its California analog. In particular, appellant did not make a showing, before or after the subpoena was issued, that the Facebook documents and testimony would actually be material and favorable to his defensive theory. Therefore, the trial court did not abuse its discretion in quashing the subpoena. Based on this conclusion, we need not and do not address appellant's SCA arguments. See TEX. R. APP. P. 47.1. We thus resolve appellant's second issue against him.
III. Conclusion
Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47
150119F.U05
JUDGMENT
On Appeal from the 291st Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1142288-U.
Opinion delivered by Justice Whitehill. Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 23, 2016.
JUDGMENT
On Appeal from the 291st Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1142289.
Opinion delivered by Justice Whitehill. Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 23, 2016.
JUDGMENT
On Appeal from the 291st Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1142290.
Opinion delivered by Justice Whitehill. Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 23, 2016.