Cletus Ray Malone v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00052-CR
___________________________

CLETUS RAY MALONE, Appellant

V.

THE STATE OF TEXAS

On Appeal from 372nd District Court
Tarrant County, Texas
Trial Court No. 1783496

Before Kerr, Birdwell, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION

I. INTRODUCTION

Appellant Cletus Ray Malone appeals his conviction for aggravated robbery.

See Tex. Penal Code Ann. § 29.03(a). Raising two evidentiary issues, he argues that the

trial court abused its discretion by admitting (1) an FBI agent’s report analyzing call-

detail and Google-location-history records pertaining to a cellphone found on

Malone’s person when he was arrested and (2) a pawnshop receipt in Malone’s name

that contained his identifying information, including a phone number matching the

number associated with the recovered cellphone. Because Malone’s evidentiary

complaints lack merit, we affirm.

II. BACKGROUND

Around 11:30 a.m. on June 5, 2023, a robber stole approximately $916 in cash

from a Kroger grocery store in North Richland Hills. Security-camera footage

revealed the robber to be an older black male wearing blue jeans and a plaid shirt and

showed him escaping in a silver minivan with a covered license plate and paint

blemishes over the right rear wheel.

North Richland Hills Police Detective Cody Brock, who was assigned as the

lead investigator, discovered security footage from a nearby business that showed the

robber pulling into a parking lot and covering his license plate on the way to the

Kroger. On the security footage, the robber was wearing the same clothing that he

was wearing during the robbery. License-plate readers from the area captured the

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silver minivan’s license plate a mile away from the Kroger twenty minutes before the

robbery. The van’s license plate was registered to Malone, and his physical

description and photograph on file as the vehicle’s owner matched the appearance of

the robber.

Over the next few days, similar robberies were committed at a number of area

grocery stores. At each location, the robber followed a similar modus operandi, wore

similar clothing, and drove a silver minivan with an obstructed license plate and paint

blemishes over the right rear wheel.

On June 9, 2023, during an attempted robbery at a Kroger grocery store in

Arlington, the robber left behind a receipt from a vehicle loan that bore Malone’s

name and address. The fingerprints found on the receipt did not match Malone’s, but

a check of the surveillance footage in the area confirmed that Malone’s minivan had

been at the entrance of the Kroger parking lot shortly before the attempted robbery

had taken place.

That evening, Fort Worth police followed Malone as he drove his minivan

from his house to a nearby strip mall. When one of the officers stopped Malone, he

initially gave a false name and fake identification. After Malone’s identity was

confirmed, he was arrested.

When he was arrested, Malone had three cellphones in his pockets. The police

obtained a search warrant authorizing them to extract and analyze the data from all

three cellphones. They also obtained a search warrant for Malone’s Google data as

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well as his T-Mobile records. Analysis of this data revealed that these cellphones had

been used to search for and obtain directions to many of the grocery stores that had

been robbed.

The data also showed that the cellphones found on Malone had been used to

search online for pawnshops. Based on this data, Detective Brock searched the Leads

Online database of all pawnshop transactions and found a pawn ticket reflecting that

Malone had sold an item on June 5, 2023.1 The receipt included Malone’s name; date

of birth; address; and—most significantly—phone number, which matched the

number of one of the recovered cellphones.

Ultimately, Malone was charged by indictment with aggravated robbery. He

pleaded not guilty, and a jury trial was held.

One of the State’s witnesses was FBI Special Agent Pamela Hanson, who had

analyzed the data from the three cellphones found on Malone at the time of his arrest.

Special Agent Hanson prepared a report summarizing her analysis that included a map

of the Google location data from the cellphone with the number matching the one on

the pawn ticket. When the State offered Special Agent Hanson’s report as State’s

Exhibit 87, Malone objected to the portion of the exhibit that was drawn from the

cellphone-location data that had not been previously admitted into evidence. To

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As Detective Brock explained at trial, when someone sells an item to a
pawnshop, the seller is generally required to provide identification. That identification
information is then logged, and a pawn ticket is generated. Leads Online is a database
that allows searches of those tickets by date range.

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satisfy that objection, the State offered the underlying cellphone-location data

provided by Google for record purposes only as State’s Exhibit 119. Exhibit 119

included a letter from Google’s records custodian and a digitally signed business-

records declaration confirming that the records had been kept in the course of a

regularly conducted business activity.

Malone then objected that the business-records declaration failed to satisfy the

applicable requirements and argued that the State’s failure to authenticate the

cellphone-location data in Exhibit 119 meant that the information should be excluded

from Exhibit 87. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001(c), (d); Tex. R.

Evid. 803(6), 902(10). Malone also asserted that the cellphone-location data was

testimonial hearsay and that its admission would violate the Sixth Amendment’s

Confrontation Clause. See U.S. Const. amend. VI. The State responded that the

cellphone-location data did not constitute a “statement,” much less a testimonial

statement for purposes of the Confrontation Clause. After considering the parties’

arguments, the trial court overruled Malone’s objections and admitted Exhibit 87.

Later, the State offered the pawn ticket reflecting Malone’s phone number into

evidence as Exhibit 100. Malone objected on authentication, hearsay, and

Confrontation Clause grounds. After hearing arguments from both parties, the trial

court overruled Malone’s objections and admitted the pawn ticket into evidence.

After considering all of the evidence, the jury found Malone guilty. During the

trial’s punishment phase, the jury found Malone to be a habitual offender and

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assessed his sentence at ninety-nine years in prison. The trial court sentenced him

accordingly. This appeal followed.

III. DISCUSSION

A. Standard of Review

We review a trial court’s decision to admit or exclude evidence under an abuse-

of-discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003);

Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We will not reverse a

trial court’s decision to admit or exclude evidence unless the record shows a clear

abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only

when the trial court’s decision was so clearly wrong as to lie outside that zone within

which reasonable persons might disagree. Id.

B. Admission of State’s Exhibit 87

In his first issue, Malone contends that the trial court abused its discretion by

admitting State’s Exhibit 87 because the underlying cellphone-location data was not

properly authenticated and constituted hearsay. Alternatively, he argues that the

admission of State’s Exhibit 87 violated his rights under the Confrontation Clause

because the underlying cellphone-location data was testimonial in nature. We

disagree.

1. Authentication Analysis

Authentication requires only “evidence sufficient to support a finding that the

item is what the proponent claims it is.” Tex. R. Evid. 901(a); Butler v. State,

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459 S.W.3d 595, 605 (Tex. Crim. App. 2015). Authentication “can be accomplished

in a myriad of ways, depending upon the unique facts and circumstances of each case,

including . . . through evidence showing distinctive characteristics.” Butler, 456 S.W.3d

at 601. The authentication methods listed in Rule 901(b) are not exhaustive;

authenticating evidence need not exhibit any particular form or content and may be

either direct or circumstantial. See id. at 602; Jones v. State, 572 S.W.3d 841, 848 (Tex.

App.—Houston [14th Dist.] 2019, no pet.). As long as the “fact-finder could

rationally choose to believe the sponsoring witness, and the witness’s testimony would

establish that the item proffered ‘is what its proponent claims[,]’” a trial court does

not abuse its discretion by admitting it. Butler, 456 S.W.3d at 605. “Conclusive proof

of authenticity . . . is not required.” Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim.

App. 2018).

Here, even if the business-records declaration attached as part of State’s

Exhibit 119 did not satisfy the requirements of the business-records exception to the

hearsay rule, see Tex. R. Evid. 803(6); see also Tex. Civ. Prac. & Rem. Code Ann.

§ 132.001(c), (d), it nevertheless established that the location data came directly from

Google in response to a search warrant.2 And on voir dire, Special Agent Hanson

confirmed that Google had, in fact, provided the data in response to a warrant.

2
As discussed below, the trial court could have reasonably concluded that the
location data did not constitute hearsay. Thus, the declaration’s purported failure to
satisfy the business-records-exception requirements is inconsequential.

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Special Agent Hanson also testified to her specialized training and knowledge in

obtaining and mapping cellphone data to establish locations. And Exhibit 87 itself

describes how she compared this data with other information obtained from the

cellphone, including call-detail records for the target cellphone, as part of her analysis.

This type of historical cell-site analysis involving both cellphone location data and

other information obtained from the cellphone effectively provides independent

corroboration of the location data. See Melson v. State, No. 09-22-00072-CR, 2024 WL

2949044, at *6 (Tex. App.—Beaumont June 12, 2024, no pet.) (mem. op., not

designated for publication) (citing Wells v. State, 675 S.W.3d 814, 830 (Tex. App.—

Dallas 2023), aff’d, 714 S.W.3d 614 (Tex. Crim. App. 2025)). Given this evidence, the

trial court could have reasonably concluded that the cellphone-location data reflected

in State’s Exhibit 87 was sufficiently authenticated. See id.; see also Lehrman v. State,

No. 02-25-00057-CR, 2025 WL 1668341, at *2 (Tex. App.—Fort Worth June 12,

2025, no pet.) (mem. op., not designated for publication) (“[An item’s] admission into

evidence ‘merely requires some evidence sufficient to support a finding that [the

proffered item] is what the proponent claims.’” (quoting Fowler, 544 S.W.3d at 848)).

2. Hearsay Analysis

Hearsay is a statement, other than one made by the declarant while testifying at

trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid.

801(d). The rules of evidence define “statement” as “a person’s oral or written verbal

expression, or nonverbal conduct that a person intended as a substitute for verbal

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expression” and “declarant” as “the person who made the statement.” Tex. R. Evid.

801(a)–(b) (emphasis added). Given these definitions, the trial court could have

reasonably concluded that the cellphone-location data—which was entirely computer-

generated—was not hearsay because it was not a “statement” made by a “declarant.”

See Melson, 2024 WL 2949044, at *6 (“The trial court could have concluded that the

[cellphone-]location data was not hearsay because the definition of hearsay requires an

out-of-court statement by a declarant, and the data from the service provider’s portal

or computer is not considered a declarant for purposes of the hearsay rule.”); see also

Nguyen v. State, No. 05-20-00241-CR, 2022 WL 3714494, at *8 (Tex. App.—Dallas

Aug. 29, 2022, pet. ref’d) (mem. op., not designated for publication) (“The black box

of appellant’s vehicle is a computer and, by definition, cannot be a declarant for

purposes of the rule against hearsay.” (citing Stevenson v. State, 920 S.W.2d 342, 343

(Tex. App.—Dallas 1996, no pet.) (en banc))); Murray v. State, 804 S.W.2d 279, 284

(Tex. App.—Fort Worth 1991, pet. ref’d) (admonishing that “it would be incorrect to

assume that a hearsay problem is present anytime a machine ‘talks,’ transmits data, or

otherwise communicates information” and clarifying that “[m]echanical

devices . . . are not persons and cannot be ‘declarants.’ But they can serve as vehicles

for storing or transmitting ‘statements’ made by a ‘person.’” (quoting David A.

Schlueter, Hearsay—When Machines Talk, 53 Tex. Bar J. 1135 (1990))).

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3. Confrontation Clause Analysis

The Sixth Amendment’s Confrontation Clause, made applicable to the states

through the Fourteenth Amendment, provides that “[in] all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amends. VI, XIV; see Smith v. Arizona, 602 U.S. 779, 783, 144 S. Ct. 1785,

1791 (2024). Once a defendant raises a Confrontation Clause objection, the burden

shifts to the State to establish either (1) that the proposed statement does not contain

testimonial hearsay and thus does not implicate the Confrontation Clause or (2) that

the statement does contain testimonial hearsay but is nevertheless admissible. See

De La Paz v. State, 273 S.W.3d 671, 680–81 (Tex. Crim. App. 2008).

“[T]estimonial statements are those ‘that were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.’” Adkins v. State, 418 S.W.3d 856, 861–62 (Tex.

App.—Houston [14th Dist.] 2013, pet. ref’d) (quoting Burch v. State, 401 S.W.3d 634,

636 (Tex. Crim. App. 2013)). A court considers the totality of the circumstances in

determining whether a statement is testimonial. Clark v. State, 282 S.W.3d 924, 931

(Tex. App.—Beaumont 2009, pet. ref’d).

As Malone acknowledges, his argument that the admission of the cellphone-

location data in State’s Exhibit 87 violated his confrontation rights conflicts with our

recent holding in Wilkinson v. State, No. 02-24-00316-CR, 2025 WL 2552336 (Tex.

App.—Fort Worth Sept. 4, 2025, pet. ref’d) (mem. op., not designated for

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publication). In Wilkinson, we held that the trial court did not violate the appellant’s

confrontation rights by admitting data extracted from a cellphone because “reports

containing only ‘raw, computer-generated data’ are not testimonial for purposes of

confrontation.” Id. at *2–3 (quoting Hill v. State, No. 02-21-00172-CR, 2023 WL

1859795, at *6 (Tex. App.—Fort Worth Feb. 9, 2023, no pet.) (mem. op., not

designated for publication)). Given our holding in Wilkinson, we conclude that the

trial court did not violate Malone’s confrontation rights by admitting the computer-

generated cellphone-location data contained in State’s Exhibit 87.3 See id.

4. Disposition

Having rejected all of Malone’s complaints regarding the admission of State’s

Exhibit 87, we overrule his first issue.

C. Admission of State’s Exhibit 100

In his second issue, Malone contends that the trial court abused its discretion

by admitting State’s Exhibit 100—the pawn ticket—because it contained testimonial

hearsay and therefore violated his rights under the Confrontation Clause. We

disagree.

The cover letter and business-records declaration that accompanied the
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cellphone-location data reflected that the information had been obtained and retained
as part of Google’s ordinary business operations. Thus, even if the data were not
wholly computer-generated, it would still not be testimonial because it was not created
or obtained in anticipation of a later trial. See Adkins, 418 S.W.3d at 861–62.

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As noted, the Confrontation Clause bars only statements that are testimonial in

nature—i.e., those made for the purpose of establishing some fact at trial. See Adkins,

418 S.W.3d at 861–62. Accordingly, statements in records that would exist as part of

business records even if no criminal charges had ever been filed are not testimonial,

and the admission of such records does not violate the Confrontation Clause. See

LaMotte v. State, No. 01-15-00368-CR, 2016 WL 3964898, at *7 (Tex. App.—Houston

[1st Dist.] July 21, 2016, no pet.) (mem. op., not designated for publication).

Here, the pawn ticket admitted as State’s Exhibit 100 documented a pawnshop

transaction as part of the pawnshop’s ordinary business operations; it was not

generated for the purpose of establishing some fact at trial. Indeed, as the State

points out, the pawn ticket was created at 9:37 a.m. on June 5, 2023—approximately

two hours before Malone’s first robbery. Accordingly, the pawn ticket is not

testimonial, and its admission did not violate Malone’s confrontation rights. See

Garraway v. State, No. 03-14-00595-CR, 2017 WL 1404726, at *4 (Tex. App.—Austin

Apr. 11, 2017, no pet.) (mem. op., not designated for publication) (holding that the

admission of an exhibit consisting of Leads Online pawnshop sales data did not

violate the appellant’s confrontation rights because it contained “data showing

pawnshop transactions that were documented as part of the pawnshops’ ordinary

business operations, the data was not created for the purpose of establishing some

fact at trial, and the data would have existed even if charges had never been filed

against [the appellant]”).

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We overrule Malone’s second issue.

IV. CONCLUSION

Having overruled both of Malone’s issues, we affirm the trial court’s judgment.

/s/ Dana Womack

Dana Womack
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 8, 2026

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