Reynaldo Julius Perez v. State ( 2019 )

NUMBER 13-18-00547-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
REYNALDO JULIUS PEREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Hinojosa
Reynaldo Julius Perez appeals his conviction, following a jury verdict, of unlawful
possession of a firearm by a felon, a third-degree felony enhanced by appellant’s prior
felony conviction. See TEX. PENAL CODE ANN. §§ 12.42(a), 46.04(a)(1). In accordance
with the jury’s punishment assessment, the trial court sentenced appellant to twenty
years’ imprisonment in the Texas Department of Criminal Justice–Institutional Division.
In one issue, appellant argues that the trial court abused its discretion in admitting
photographic evidence. We affirm.
I. BACKGROUND
A grand jury returned an indictment charging appellant with possessing a firearm
before the fifth anniversary of his release from supervision under parole for a prior murder
conviction. See id. § 46.04(a)(1). At trial, the State called Brody Davis, a Victoria
County Sheriff’s deputy. Deputy Davis testified that he responded to a report of gunshots
being heard on private property located in Victoria County, Texas. Upon arrival, Deputy
Davis and other responding officers encountered appellant who reported that he was
recently released from prison. According to Deputy Davis, he observed a handgun in
plain view inside appellant’s vehicle. After Deputy Davis received confirmation from
dispatch that appellant had a felony conviction, he arrested appellant. During Deputy
Davis’s testimony, the following colloquy took place concerning State’s Exhibit 1:
[Prosecutor:] Deputy, I am handing you a packet of seven
photographs. Could you look at those and tell me if you
recognize them?
[Witness:] Yes, sir, I do.
[Prosecutor:] And what are they?
[Witness:] This is the firearm that we found the defendant to be in
possession of, and it’s the defendant’s vehicle
registered in his name. We verified that through our
dispatch that he was the owner of the vehicle. When
we approached the vehicle for him to get his ID, that’s
the vehicle that the defendant walked to, opened the
door, and that’s actually where we saw the firearm just
like [it] is displayed in that photo.
[Prosecutor:] Okay. Did you take these photographs?
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[Witness:] No, I did not. Deputy Castillo took them.
[Prosecutor:] He’s capable of operating a camera?
[Witness:] Yes, sir.
[Prosecutor:] Okay. Do these photographs—
[Defense Counsel:] Objection. He’s not an expert on whether the other
officer is capable of operating a camera, nor does he
know anything about the other deputy.
[Trial Court:] Objection overruled. You may proceed.
[Prosecutor:] Do these photographs—are they a fair and accurate
depiction of the scene on that night?
[Witness:] Yes, they are.
[Prosecutor:] And, Your Honor, just for the record, I would like to
amend that I said seven photographs. It is actually a
packet of eight.
[Defense Counsel]: No objection.
[Prosecutor:] Your Honor, the State offers State’s Exhibit 1, a packet
of eight photographs into evidence.
[Trial Court:] Any objection?
[Defense Counsel:] No objection.
[Trial Court:] State’s Exhibit 1 is admitted.
The case was submitted to the jury, which found appellant guilty. This appeal
ensued.
II. DISCUSSION
A. Standard of Review and Applicable Law
Like other evidentiary rulings, we review a trial court’s ruling on authentication
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issues for an abuse of discretion. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App.
2018). We will uphold a trial court’s admissibility decision when it is within the zone of
reasonable disagreement. Id. Authentication is a condition precedent to admissibility
of evidence that requires the proponent to make a threshold showing “sufficient to support
a finding that the matter in question is what its proponent claims.” TEX. R. EVID. 901(a);
see Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Rule 901 provides a
nonexclusive list of methods to authenticate evidence. See TEX. R. EVID. 901(b). One
method of authentication is the testimony of a witness with knowledge that “an item is
what it is claimed to be.” Id. R. 901(b)(1). When a photograph is authenticated by a
witness with knowledge, the admissibility of the item is conditioned on the witness’s
identification of the exhibit as a fair and accurate depiction of the person, place, or event
that the item purports to portray. Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim.
App. 1988).
“In a jury trial, it is the jury’s role ultimately to determine whether an item of
evidence is indeed what its proponent claims.” Butler v. State, 459 S.W.3d 595, 600
(Tex. Crim. App. 2015). The trial court need only make the preliminary determination
that the proponent of the item has supplied facts sufficient to support a reasonable jury
determination that the proffered evidence is authentic. Tienda, 358 S.W.3d at 638.
Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that a complaint
is not preserved for appeal unless it was made to the trial court “by a timely request,
objection or motion” that “stated the grounds for the ruling that the complaining party
sought from the trial court with sufficient specificity to make the trial court aware of the
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complaint, unless the specific grounds were apparent from the context.” TEX. R. APP. P.
33.1(a). Likewise, under Rule 103 of the Texas Rules of Evidence, error may not be
predicated upon a ruling which admits or excludes evidence unless “a timely objection or
motion to strike appears of record, stating the specific ground of objection, if the specific
ground was not apparent from the context.” TEX. R. EVID. 103.
The purpose for requiring a specific objection is twofold: (1) to inform the trial
court of the basis of the objection and provide an opportunity to rule on it; and (2) to give
opposing counsel the opportunity to respond to the complaint. Resendez v. State, 306
S.W.3d 308, 312 (Tex. Crim. App. 2009). The complaining party must have done
everything necessary to bring the relevant evidentiary rule and its precise and proper
application to the trial court’s attention. Id. at 313.
B. Analysis
Appellant principally complains of the admission of State’s Exhibit 1. However,
as reflected above, appellant objected only to Deputy Davis’s testimony concerning
another deputy’s ability to operate a camera. When the exhibit was offered into evidence
by the State, appellant stated that he had no objection. Nevertheless, appellant
maintains that the trial court should have inferred from the context of his objection that he
was objecting to “lack of proper foundation.” We disagree.
Appellant’s objection provided the trial court with no basis to exclude State’s
Exhibit 1—the objection was not to the exhibit, but to a question posed by the State to a
witness. See id. at 312. Further, there being no objection to the admission of the
exhibit, State’s counsel was never afforded the opportunity to respond to any admissibility
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complaint. See id. Accordingly, we conclude that appellant has failed to preserve for
appeal any complaint regarding the exhibit’s admissibility. See TEX. R. APP. 33.1(a); TEX.
R. EVID. 103.
Even if we were to construe appellant’s objection as a challenge to the exhibit’s
authenticity, appellant’s issue is without merit. Deputy Davis testified based on personal
knowledge that the photographs in State’s Exhibit 1 provided a fair and accurate depiction
of the scene on the night of appellant’s arrest. This testimony satisfies Rule of Evidence
901’s requirement that the proponent of evidence make a threshold showing sufficient to
support a finding that the matter in question is what its proponent claims. See TEX. R.
EVID. 901(a); see Huffman, 746 S.W.2d at 222. The trial court did not abuse its discretion
in admitting State’s Exhibit 1. See Fowler v. State, 544 S.W.3d at 848.
We overrule appellant’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
1st day of August, 2019.
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