Defendant raised a Carpenter CSLI issue pretrial, and he prevails. Carpenter held retroactive (despite citing Davis). Dixon v. State, 2018 Tex. App. LEXIS 10340 (Tex. App. – Amarillo Dec. 13, 2018):
As for whether the trial court erred by failing to suppress appellant’s CSLI obtained by a court order but without a warrant, we believe the holding of the Court’s Carpenter opinion is controlling and applies retroactively, a conclusion the parties do not dispute in their supplemental briefing. See Davis v. United States, 564 U.S. 229, 243, 244, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)) (newly announced rules of constitutional criminal procedure must apply retroactively without exception to all cases, state or federal, pending on direct review or not yet final); McClintock v. State, 541 S.W.3d 63, 67 n.4 (Tex. Crim. App. 2017) (“we ordinarily follow federal rules of retroactivity”); cf. Olivas v. State, No. PD-0561-17, 2018 Tex. Crim. App. Unpub. LEXIS 619 (Tex. Crim. App. Sep. 12, 2018) (per curiam) (not designated for publication) (granting petition as to defendant’s challenge of CSLI obtained without a warrant and remanding case to court of appeals for further action in light of Carpenter, decided during pendency of petition for discretionary review). We agree with the parties that, under the holding of Carpenter, the trial court erred by denying appellant’s motion to suppress his CSLI. That evidence should not have been presented to the jury. We next must consider the harmfulness of the error.
Don’t count on this case surviving the Texas Court of Criminal Appeals on this issue.