Anthony Michael Longoria v. State ( 2015 )

ACCEPTED
01-15-00213
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/17/2015 9:17:56 AM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00213-CR
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXASHOUSTON, TEXAS
AT HOUSTON 12/17/2015 9:17:56 AM
CHRISTOPHER A. PRINE
Clerk
ANTHONY MICHAEL LONGORIA § APPELLANT
§
VS. §
§
THE STATE OF TEXAS § APPELLEE
__________________________________________________________________
APPEAL FROM CAUSE NO. 1378394
IN THE 337TH DISTRICT COURT
OF HARRIS COUNTY, TEXAS
___________________________________________________________________
APPELLANT’S AMENDED BRIEF
___________________________________________________________________
ADAM B. BROWN
SBOT No. 01728540
300 Main, Ste. 200
Houston, Texas 77002
Phone (713) 223-0051
Fax (713) 223-0877
adambrownlaw@yahoo.com
ATTORNEY FOR APPELLANT
APPELLANT REQUESTS ORAL ARGUMENT
Identity of Parties and Counsel
The following is a complete list of all parties to the trial court’s judgment, and the
names and addresses of all trial and appellate counsel:
Anthony Michael Longoria ................................................................................... Appellant
State of Texas ......................................................................................................... Appellee
James Tucker Graves ............................................. Appellant’s Appointed Counsel at Trial
402 Main St., Ste. 200
Houston, Texas 77002
Abigail Anastasio ................................................... Appellant’s Appointed Counsel at Trial
50 Briar Hollow Lane, Suite 235 W.
Houston, Texas 77027
Coby Leslie ..................................................................... Assistant District Attorney at Trial
Harris County District Attorney’s Office
1201 Franklin
Houston, Texas 77002
Adam B. Brown ................................................ Appellant’s Appointed Counsel on Appeal
300 Main, Ste. 200
Houston, Texas 77002
Alan Curry ................................................................ Assistant District Attorney on Appeal
Harris County District Attorney’s Office
1201 Franklin
Houston, Texas 77002
Hon. Renee Magee .............................................................................................. Trial Judge
2
Contents
Page
Identity of Parties and Counsel .................................................................................. 2
Table of Contents ....................................................................................................... 3
List of Authorities ...................................................................................................... 5
Statement of the Case ............................................................................................... 10
Issues Presented........................................................................................................ 10
Issue One: The trial court erred in providing a limiting instruction in the
jury charge in violation of Texas Rule of Evidence 105.
Issue Two: The trial court erred in providing a limiting instruction in the
jury charge in violation of Article 36.14 of the Texas Code of Criminal
Procedure.
Issue Three: The trial court erred in providing a limiting instruction in
the jury charge in violation of Appellant’s Sixth Amendment right to
counsel.
Issue Four: The trial court abused its discretion in admitting a video
recording that was not authenticated pursuant to Texas Rule of Evidence
901.
Summary of the Arguments ..................................................................................... 11
Background Facts ..................................................................................................... 12
Arguments and Authorities ...................................................................................... 16
Issues One, Two, and Three ............................................................................... 16
3
A. Facts....................................................................................................... 16
B. Standard of Review ............................................................................... 17
C. The trial court erred in including the limiting instruction
in the jury charge. ................................................................................. 17
D. The error infringed on Appellant’s Sixth Amendment right to
counsel.. ................................................................................................ 19
E. Harm Analysis ...................................................................................... 25
1. Constitutional Error.. ........................................................................ 25
2. Harm Analysis under the Almanza Standard .................................... 28
Issue Four ........................................................................................................... 30
A. Facts....................................................................................................... 30
B. Standard of Review ............................................................................... 32
C. The trial court abused its discretion in admitting the video
recording because it was not authenticated... ........................................ 32
D. The error harmed Appellant’s substantial rights. .................................. 43
Prayer ....................................................................................................................... 47
Certificate of Service ................................................................................................ 48
Certificate of Compliance ........................................................................................ 48
4
List of Authorities
Cases:
Agbogwe v. State, .............................................................................................. 20, 29
414 S.W.3d 820 (Tex. App.-Houston [1st Dist.] 2013, no pet.)
Almanza v. State, ............................................................................................... 17, 28
686 S.W.2d 157 (Tex. Crim. App. 1984)
Angleton v. State, ..................................................................................................... 32
971 S.W.2d 65 (Tex. Crim. App. 1998)
Ballard v. State, ....................................................................................................... 38
23 S.W.3d 178 (Tex. App.-Waco 2000, no pet.)
Barrios v. State, ....................................................................................................... 17
283 S.W.3d 348 (Tex. Crim. App. 2009)
Barshaw v. State, ............................................................................................... 44, 47
342 S.W.3d 91 (Tex. Crim. App. 2011)
Blevins v. State, ....................................................................................................... 18
884 S.W.2d 219 (Tex. App.-Beaumont 1994, no pet.)
Brown v. State, ........................................................................................................ 41
14-03-01265-CR, 2005 WL 363950
(Tex. App.—Houston [14th Dist.] Feb. 17, 2005, pet. ref'd)
Burnett v. State, ................................................................................................. 44, 47
88 S.W.3d 633 (Tex. Crim. App. 2002)
Curry v. State, .................................................................................................... 20, 29
861 S.W.2d 479 (Tex. App.-Fort Worth 1993, pet. ref'd)
Delgado v. State, ..............................................................................................passim
235 S.W.3d 244 (Tex. Crim. App. 2007)
5
Druery v. State, .................................................................................................. 17, 28
225 S.W.3d 491 (Tex. Crim. App. 2007)
Ex parte Ewing, ....................................................................................................... 21
570 S.W.2d 941 (Tex. Crim. App. 1978)
Gallo v. State, .......................................................................................................... 32
239 S.W.3d 757 (Tex. Crim. App. 2007)
Garcia v. State, ........................................................................................................ 40
05-07-00540-CR, 2008 WL 2655622
(Tex. App.—Dallas July 8, 2008, pet. ref'd)
Garcia v. State, ........................................................................................................ 44
126 S.W.3d 921 (Tex. Crim. App. 2004)
Hammock v. State, ................................................................................................... 18
46 S.W.3d 889 (Tex. Crim. App. 2001)
Harris v. State, ........................................................................................................ 26
790 S.W.2d 568 (Tex. Crim. App. 1989)
Hernandez v. State, .................................................................................................. 26
80 S.W.3d 63 (Tex. App.–Amarillo 2002, no pet.)
Huffman v. State, ..................................................................................................... 33
746 S.W.2d 212 (Tex. Crim. App. 1988)
King v. State, ........................................................................................................... 44
953 S.W.2d 266 (Tex. Crim. App. 1997)
Lakeside v. Oregon, ..........................................................................................passim
435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978)
Langham v. State, .................................................................................................... 26
305 S.W.3d 568 (Tex. Crim. App. 2010)
6
McGowan v. State, .................................................................................................. 19
375 S.W.3d 585 (Tex. App.-Houston [14th Dist.] 2012, pet. ref'd)
McNeil v. State, ................................................................................................. 20, 29
452 S.W.3d 408 (Tex. App.—Houston [1st Dist.] 2014), pet. ref’d)
Morales v. State, ...................................................................................................... 44
32 S.W.3d 862 (Tex. Crim. App. 2000)
Motilla v. State, ....................................................................................................... 26
78 S.W.3d 352 (Tex. Crim. App. 2002)
Page v. State, ........................................................................................................... 36
125 S.W.3d 640 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd)
Patterson v. Illinois, ................................................................................................ 22
487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988)
Pollard v. State, ....................................................................................................... 26
255 S.W.3d 184 (Tex. App.–San Antonio 2008),
aff'd, 277 S.W.3d 25, 33 (Tex. Crim. App. 2009)
Randell v. State, ................................................................................................. 34, 40
No. 07–11–00493–CR, 2013 WL 309001
(Tex.App.-Amarillo Jan. 25, 2013, pet. ref'd)
Reavis v. State, .................................................................................................. 33, 35
84 S.W.3d 716 (Tex. App.-Fort Worth 2002, no pet.)
Ryan v. State, ............................................................................................... 18, 20, 29
937 S.W.2d 93 (Tex. App.-Beaumont 1996, pet. ref'd)
Sakil v. State, ........................................................................................................... 17
287 S.W.3d 23 (Tex. Crim. App. 2009)
Schutz v. State, ......................................................................................................... 44
63 S.W.3d 442 (Tex. Crim. App. 2001)
7
Snowden v. State, ............................................................................................... 25, 26
353 S.W.3d 815 (Tex. Crim. App. 2011)
Standmire v. State, ................................................................................................... 33
--- S.W.3d ----, 2014 WL 3882940
(Tex. App.—Waco Aug. 7, 2014, pet. ref’d)
State v. Frye, ............................................................................................................ 22
897 S.W.2d 324 (Tex. Crim. App. 1995)
Strickland v. Washington, ........................................................................................ 21
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
Teeter v. State, ......................................................................................................... 41
05-06-00309-CR, 2007 WL 510356
(Tex. App.—Dallas Feb. 20, 2007, no pet.)
United States v. Johnson, ........................................................................................ 18
46 F.3d 1166 (D.C. Cir. 1995)
United States v. Rhodes, .......................................................................................... 18
62 F.3d 1449 (D.C. Cir. 1995)
United States v. Taylor, ........................................................................................... 37
530 F.2d 639 (5th Cir.),
cert. denied, 429 U.S. 845, 97 S. Ct. 127, 50 L. Ed. 2d 117 (1976)
Walters v. State, ....................................................................................................... 32
247 S.W.3d 204 (Tex. Crim. App. 2007)
Warren v. State, ................................................................................................. 34, 39
No. 08–11–00029–CR, 2012 WL 651642
(Tex. App.-El Paso Feb.29, 2012, no pet.)
8
Watson v. State, ....................................................................................................... 38
421 S.W.3d 186 (Tex. App.—San Antonio 2013, pet. ref’d)
Weatherred v. State, ................................................................................................ 32
15 S.W.3d 540 (Tex. Crim. App. 2000)
Statutes, Codes and Constitutional Provisions:
U.S. CONST. amend. VI ..................................................................................passim
TEX. CODE CRIM. PROC. art. 36.14 .................................................................... 18, 19
TEX. R. APP. P. 44.2 ........................................................................................... 25, 43
TEX. R. EVID. 105 ............................................................................................. 18, 19
TEX. R. EVID. 901 .............................................................................................. 32, 33
Other Sources:
Daniel D. Blinka, Ethics, Evidence, and the Modern Adversary Trial,
19 Geo. J. Legal Ethics 1, 19 (2006) .................................................................. 29
9
To the Honorable Justices of the Court of Appeals:
Statement of the Case
Appellant Anthony Michael Longoria was charged by indictment with the first
degree felony offense of aggravated robbery, alleged to have occurred on February 21,
2013. CR20. Appellant entered a plea of not guilty and a jury found him guilty.
CR105; 127. The jury assessed a sentence of 20 years imprisonment. CR127.
Appellant filed a motion for new trial, which was overruled by operation of law.
CR135. Appellant filed timely written notice of appeal. CR131.
Issues Presented
Issue One: The trial court erred in providing a limiting
instruction in the jury charge in violation of Texas Rule
of Evidence 105.
Issue Two: The trial court erred in providing a limiting
instruction in the jury charge in violation of Article
36.14 of the Texas Code of Criminal Procedure.
Issue Three: The trial court erred in providing a
limiting instruction in the jury charge in violation of
Appellant’s Sixth Amendment right to counsel.
Issue Four: The trial court abused its discretion in
admitting a video recording that was not authenticated
pursuant to Texas Rule of Evidence 901.
10
Summary of the Arguments
Issues One, Two, and Three: The trial court erred in providing a limiting
instruction for extraneous offense evidence over Appellant’s objection during the guilt-
innocence phase. Appellant did not request a limiting instruction when the evidence
was admitted, so the evidence was admitted for all purposes under Texas Rule of
Evidence 105. Thus, the limiting instruction was not law “applicable to the case” under
Article 36.14 of the Code of Criminal Procedure, and should not have been given.
Moreover, because foregoing a limiting instruction is a matter of trial strategy, the trial
court violated Appellant’s Sixth Amendment right to counsel by overriding counsel’s
strategic decision. The instruction harmed the defense because it focused the jury’s
attention on prejudicial evidence Appellant wished to minimize, and instructed the jury
to consider the evidence for specific purposes.
Issue Four: The trial court erred in admitting during the punishment phase a
video recording that was not properly authenticated. The authenticating witness had no
personal knowledge that the recording equipment was functioning properly.
Additionally, the authenticating witness failed to establish how the equipment was
activated, how it was deactivated, and how the recording was accessed and reproduced
for trial. The trial court abused its discretion in admitting the evidence because the
State failed to establish that the recording system was capable of producing an accurate
11
recording. Because the video recording captured a conversation in which Appellant
and the codefendant schemed to mislead the police, discussed the incriminating
evidence, and demonstrated a conspicuous lack of remorse, Appellant was harmed by
its admission.
Background Facts
During the evening of February 21, 2013, the complainant, Branislav
Kupresakovic, was at his Katy home with his wife and his 21-year-old son. 3RR15-20.
He heard a knock at the front door, looked through the peephole, and observed a young
Hispanic male, whom he assumed to be a friend of his son. 3RR20. When complainant
opened the door a little bit the male pushed against the door. 3RR20-21. Two
additional males appeared; the complainant recalled that one was carrying a handgun
and the other was carrying a shotgun. 3RR20-21; 31. One of the additional males had
glasses and a dark scarf covering his face. 3RR32. The males pushed the door open and
entered. 3RR20-21. One of the intruders told the complainant to get down on the
ground and tried to tie him up with tape. 3RR23.
The complainant yelled to his wife, who ran into the master bedroom along with
the complainant’s son. 3RR23; 42. Once in the bedroom, the complainant’s son, Slaven
Kupresakovic, retrieved the complainant’s handgun from under the bed. 3RR43. When
one of the intruders entered the bedroom, Slaven shot him several times. 3RR49-51.
12
Slaven never saw the other two intruders, who ran out of the house at the sound of
gunfire. 3RR53.
A neighbor noticed two males running across a yard in a suspicious manner and
decided to follow them in his car. 3RR76. While males circled the neighborhood in an
SUV, the neighbor reported them to the Sheriff’s department and continued to follow
them until numerous patrol cars arrived and stopped the vehicle. 3RR76-77.
The two apprehended suspects were identified as Brandon Trey King and
Appellant Longoria. 3RR114-15. The third intruder, who was killed at the scene of the
home invasion, was identified as Douglas Enriquez. 3RR115. King and Appellant were
detained in a patrol car and their conversation recorded. 3RR113-114. Sergeant C.
Clopton of the Homicide Division arrived at the scene where King and Appellant had
been apprehended and reviewed the recording. 3RR113-14. The two suspects were
then transported to the Homicide Office. 3RR115.
Appellant initially agreed to be interviewed and denied involvement, but then
indicated that he wished to terminate the interview and consult with counsel. 3RR117.
After speaking with King, who had admitted involvement, Appellant told Sergeant
Clopton that he wanted to tell the truth. 3RR118-21. In a video-recorded interview
(State’s Exhibit 64), Appellant stated that he was visiting from out of town and staying
with his cousin King. King introduced Appellant to his friend Douglas Enriquez, who
13
came up with the idea to rob King’s marijuana dealer.1 Appellant did not want to do it,
but King could not be dissuaded so Appellant went along to protect King. The plan
was for Enriquez to knock on the door, kick the door down, and get the people on the
floor; King and Appellant were to “just stand there and look intimidating.” Appellant
and King wore gloves and masks and Enriquez carried the gun. Once inside the
residence, Enriquez handed the gun to Appellant and went to the back room to round
up the residents. Appellant immediately heard gunshots and he and King fled.
Appellant threw the gun out the window of King’s vehicle a short distance away. SX64
In the vehicle investigators located a backpack containing two dark-colored
bandanas, another backpack containing duct tape, and three black air-soft BB-gun
pistols. 3RR105-108. The following day, a local resident found a loaded handgun in
the street a short distance from the scene and turned it over to the sheriff’s office.
3RR89-93. The gun was found to have been reported stolen in Wiley, Texas, where
Appellant resided.2 3RR142-43.
Codefendant Brandon Trey King testified for the defense. King testified that he
was 18 years old at the time of the offense and Appellant was 20. 3RR158. King and
Appellant picked up Douglas Enriquez on February 21, 2013, with the plan of going to
1 Slaven Kupresakovic initially testified that he did not sell marijuana, but thereafter testified
that he had sold marijuana to King on several occasions. 4RR14.
2 Codefendant Brandon Trey King testified that he visited family in Wiley prior to the robbery.
14
the mall. 3RR164-65. When King drove by the house of his marijuana dealer, Enriquez
suggested robbing him. 3RR166. Enriquez exited the car first and King followed him;
as they approached the house King first noticed that Enriquez had a gun in his
waistband. 3RR168; 200. King was wearing a bandana and carrying duct tape.
3RR168. Appellant followed King and tried to convince him to leave and go the mall,
as planned. 3RR169. King testified that Appellant looked “shocked” when Enriquez
handed him the gun after entering the house. 3RR171-72. When King heard shots,
Appellant grabbed his arm and they ran to the car. 3RR173-74. After they were
apprehended and placed in a patrol car, King told Appellant that they should tell police
a fabricated story that they had just dropped off a friend named Jackson; but thereafter
at the Sheriff’s office King told Appellant to “save himself and tell the truth.”
3RR176, 204-205. King testified that the backpack containing the two bandanas was
his, and that the backpack containing duct tape belonged to Appellant. 3RR189-91.
3RR193.
15
Arguments and Authorities
Issue One: The trial court erred in providing a limiting
instruction in the jury charge in violation of Texas Rule
of Evidence 105.
Issue Two: The trial court erred in providing a limiting
instruction in the jury charge in violation of Article
36.14 of the Texas Code of Criminal Procedure.
Issue Three: The trial court erred in providing a
limiting instruction in the jury charge in violation of
Appellant’s Sixth Amendment right to counsel.
A. Facts
Appellant objected to the inclusion of the following limiting instruction for
extraneous offenses in the jury charge:
You are further instructed that if there is any evidence
before you in this case regarding the defendant’s
committing an alleged offense or offenses other than the
offense alleged against him in the indictment in this case,
you cannot consider such evidence for any purpose unless
you find and believe beyond a reasonable doubt that the
defendant committed such other offense or offenses, if any,
and even then you may only consider the same, in
determining the motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident
of the defendant, if any, in connection with the offense, if
any, alleged against him in the indictment and for no other
purpose.
CR99. Appellant urged that “there really hasn’t been any evidence of extraneous
offenses” and requested that the instruction be deleted from the charge. 4RR12. The
16
trial court refused the request, stating that there was “very minimal” evidence of
extraneous offenses, namely, that Appellant had used marijuana, and evidence that the
gun used in the robbery had been stolen in Appellant’s hometown of Wiley, Texas.
4RR12.
B. Standard of Review
To review claims of jury charge error, an appellate court must first ask whether
there was error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App.
2009). If there was error and if the appellant objected to the error at trial, “reversal is
required if the error is ‘calculated to injure the rights of [the] defendant,’ ” meaning
that “there must be some harm to the accused from the error.” Sakil v. State, 287
S.W.3d 23, 25–26 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157,
161 (Tex. Crim. App. 1984). “[A]ny harm, regardless of degree, is sufficient to require
reversal.” Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007).
C. The trial court erred in including the limiting instruction in the
jury charge.
In Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007), the Court of
Criminal Appeals examined whether a trial court must, sua sponte, include a
reasonable-doubt and limiting instruction in the jury charge when the State offers
evidence of an extraneous offense at the guilt stage of a criminal trial. The Court noted
that Article 36.14 of the Code of Criminal Procedure requires the trial judge to deliver
17
to the jury “a written charge distinctly setting forth the law applicable to the case.” Id.
at 247. But the Court acknowledged that a trial judge does not have a duty to instruct
the jury on all potential defensive issues, lesser-included offenses, or evidentiary
issues, because these are issues that “frequently depend upon trial strategy and tactics.”
Id. at 249. The Court further noted that Texas courts have held that the decision of
whether to request a limiting instruction concerning the proper use of certain evidence,
including extraneous offenses, may be a matter of trial strategy. Id., citing Ryan v.
State, 937 S.W.2d 93, 104 (Tex. App.-Beaumont 1996, pet. ref'd); Blevins v. State, 884
S.W.2d 219, 230 (Tex. App.-Beaumont 1994, no pet.). For example, a party might well
intentionally forego a limiting instruction as part of its “deliberate ... trial strategy to
minimize the jury’s recollection of the unfavorable evidence.” Id., quoting United
States v. Johnson, 46 F.3d 1166, 1171 (D.C. Cir. 1995); United States v. Rhodes, 62
F.3d 1449, 1453–54 (D.C. Cir.1995). Moreover, if a defendant does not request a
limiting instruction under Rule 105 at the time that evidence is admitted, then the trial
judge has no obligation to limit the use of that evidence later in the jury charge. Id. at
251; Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001). Once evidence
has been admitted without a limiting instruction, it is part of the general evidence and
may be considered for all purposes. Id.; McGowan v. State, 375 S.W.3d 585, 593 (Tex.
App.-Houston [14th Dist.] 2012, pet. ref'd).
18
Accordingly, the Court concluded that a limiting instruction concerning the use
of extraneous offense evidence should be given in the guilt-stage jury charge “only if
the defendant requested a limiting instruction at the time the evidence was first
admitted.” Id. The Court observed that if the trial counsel’s strategy was to forego
objection and a limiting instruction so as not to emphasize the evidence, this strategy
was “eminently successful” because the appellant was convicted of a lesser included
offense. Id. at 254.
In the instant case, Appellant did not request a limiting instruction when the
evidence of his marijuana use and the stolen gun was admitted. Accordingly, under
Rule of Evidence 105, the evidence was admitted for all purposes. Thus, the limiting
instruction was not law “applicable to the case” under Article 36.14 of the Code of
Criminal Procedure, and should not have been given. Delgado, 235 S.W.3d at 250-52.
D. The error infringed on Appellant’s Sixth Amendment right to
counsel.
By insisting on including the instruction, over Appellant’s objection, the trial
court interfered with Appellant’s apparent trial strategy of not drawing attention to the
evidence. As noted by the Court of Criminal Appeals in Delgado, the decision of
whether to request a limiting instruction concerning the proper use of certain evidence,
including extraneous offenses, is properly a matter of trial strategy, namely, “to
minimize the jury’s recollection of the unfavorable evidence.” Id. at 249. Numerous
19
courts have found this strategy to be valid. See Delgado, supra, at 254; Ryan v. State,
937 S.W.2d 93, 104 (Tex. App.-Beaumont 1996, pet. ref'd) (“[Absent anything in the
record explaining counsel's reasoning], we can only conclude his trial strategy may
have been not to draw further attention to the extraneous offenses”); Curry v. State,
861 S.W.2d 479, 484-85 (Tex. App.-Fort Worth 1993, pet. ref'd) (holding counsel not
ineffective for not requesting limiting instruction during punishment, because
instruction was requested when extraneous offense evidence was admitted and strategy
may have been not to remind the jury of the evidence); Agbogwe v. State, 414 S.W.3d
820, 838 (Tex. App.-Houston [1st Dist.] 2013, no pet.) (“It is reasonable to conclude ...
[that] defense counsel decided that seeking an instruction to disregard Ozoh’s
testimony would only bring further attention to it”); McNeil v. State, 452 S.W.3d 408,
415 (Tex. App.—Houston [1st Dist.] 2014), pet. ref’d (trial counsel’s choice not to
request a burden-of-proof instruction and a limiting instruction about extraneous
offenses was pursuant to valid strategy to avoid drawing further attention to
defendant's potential extraneous offenses or misconduct).
The Court of Criminal Appeals has observed:
The trial judge ordinarily should not interfere with the
attorney-client relation by inquiring into the matter of
strategy and tactics. Such an inquiry should be made only if
from all appearances there could be no plausible basis in
strategy or tactics for counsel’s actions, and then the inquiry
should be made out of the presence of the jury and of the
20
prosecutor. A reply by counsel that his actions are based on
strategic or tactical considerations that will become apparent
later in the trial should satisfy the court's inquiry, and
counsel should not be required to reveal his strategy and
tactics at that time. Full inquiry should be made only if after
the trial from all appearances there still is no plausible basis
in strategy or tactics for his actions.
Ex parte Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App. 1978) (footnote omitted).
These observations are grounded in the Sixth Amendment’s guarantee that
counsel be given “wide latitude . . . in making tactical decisions.” Strickland v.
Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984).
Courts considering a challenge to counsel’s performance pursuant to the Sixth
Amendment must employ a standard in which judicial scrutiny of counsel’s
performance is highly deferential, with a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S.
at 689. There is no legal basis for a court to apply a less deferential standard when
making judgments concerning an attorney’s strategy in the course of trial.
“One of the primary purposes of the Sixth Amendment right to counsel is to
preserve the integrity of the attorney-client relationship once it has been established.”
State v. Frye, 897 S.W.2d 324, 327 (Tex. Crim. App. 1995); Patterson v. Illinois, 487
U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988). By supplanting counsel’s strategy
with the court’s own judgment concerning a jury charge on a defensive issue, a court
21
violates these Sixth Amendment principles. A judge should not interfere, or even
inquire, unless “there could be no plausible basis in strategy or tactics for counsel’s
actions.” Ewing, 570 S.W.2d at 945.
The strategy employed here has been repeatedly recognized as not just plausible,
but valid and demonstrably successful. See, e.g., Delgado, 235 S.W.3d at 254 (finding
the strategy to be an “eminently successful one”). In fact, the trial court acknowledged
that the extraneous offense evidence was “very minimal” (4RR12), circumstances that
would further justify the strategy. In these circumstances, the trial court violated
Appellant’s Sixth Amendment rights in overriding counsel’s sound judgment.
The Supreme Court examined a similar issue in Lakeside v. Oregon, 435 U.S.
333, 335, 98 S. Ct. 1091, 1092, 55 L. Ed. 2d 319 (1978). In an escape prosecution in
which the defendant did not testify, the trial court instructed the jury, over defense
objection, that the defendant’s decision not to testify should not be considered and
should not give rise to any adverse inference. 435 U.S. at 335, 98 S.Ct. at 1092. The
defense objected on the grounds that the instruction itself called attention to the
defendant’s failure to testify. 435 U.S. at 335, 98 S.Ct. at 1093. On appeal, the
defendant urged that in certain circumstances, such as when a defense is presented
through several witnesses, the jury may not notice a defendant’s failure to testify and
the instruction would serve only to draw attention to it. 435 U.S. at 340-41, 98 S.Ct. at
22
1095. The defendant challenged the trial court’s inclusion of the instruction over
defense objection on Fifth and Sixth Amendment grounds. Id.
The Court found that including the instruction over defense objection did not
violate the Fifth Amendment’s privilege against self-incrimination because the jury
was not likely to disregard the instruction; thus, the instruction could not violate the
principle it was designed to protect. Id.
The defendant also challenged the instruction on Sixth Amendment grounds,
asserting that including the instruction over defense objection interfered with trial
strategy. 436 U.S. at 341; 98 S.Ct. at 1095. The Court noted that in an adversary
system of criminal justice, there is “no right more essential than the right to the
assistance of counsel.” 435 U.S. at 341, 98 S. Ct. at 1096. But the Court held that in
this case there was no Sixth Amendment violation because the instruction (1) was
accurate, (2) was permissible, and (3) concerned a basic constitutional principle that
governs the administration of criminal justice. 435 U.S. at 341-42, 98 S. Ct. at 1096
(the Sixth Amendment does not “confer upon defense counsel the power to veto the
wholly permissible actions of the trial judge”).
The instant case is distinguishable in several important respects. First, the
limiting instruction was not permissible – the Court of Criminal Appeals has mandated
that that a limiting instruction concerning the use of extraneous offense evidence
23
should be given in the guilt-stage jury charge “only if the defendant requested a
limiting instruction at the time the evidence was first admitted.” Delgado, supra, at
249.
Second, the limiting instruction did not concern a basic constitutional principle,
but only an evidentiary issue concerning the proper use of certain evidence. Id. As
such, the Court of Criminal Appeals has held that the decision to forego the instruction
is a strategic decision within the discretion of defense counsel.
Third, the instruction in the instant case was fundamentally different in content
from the challenged instruction in Lakeside, which instructed the jury that it was not to
consider the defendant’s failure to testify for any purpose. In contrast, the instruction in
the instant case permitted the jury to consider evidence of extraneous offenses for
certain purposes if there was proof beyond a reasonable doubt. Assuming the jury
followed the instruction, it would draw the jury’s attention to the very evidence that
counsel wanted to minimize. For example, Appellant admitted in his police interview
(SX64) to using marijuana and that stealing marijuana was possibly the motive for the
robbery. Thus, the jury was likely to find the required burden of proof met, and to find
the evidence relevant for the listed permissible purposes (motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident). The
instruction in the instant case actually frustrated the defense strategy, whereas the
24
Lakeside instruction did not. See Lakeside, 435 U.S. at 340, 98 S. Ct. at 1095 (finding
it “very doubtful” that the jury would “affirmatively give weight to what they have
been told not to consider at all”). Accordingly, the trial court’s interference with trial
strategy in this case amounted to a violation of the Sixth Amendment.
E. Harm Analysis
1. Constitutional Error
Because the error impinged on Appellant’s constitutional rights, Texas Rule of
Appellate Procedure 44.2(a) applies. TEX. R. APP. P. 44.2(a); Snowden v. State, 353
S.W.3d 815, 818 (Tex. Crim. App. 2011).
Rule of Appellate Procedure 44.2(a) requires reversal in constitutional error
cases “unless the court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a). The focus is not
on whether the jury verdict was supported by the evidence, but rather whether the error
at issue might possibly have prejudiced the jurors’ decision-making. Pollard v. State,
255 S.W.3d 184, 190 (Tex. App.–San Antonio 2008), aff'd, 277 S.W.3d 25, 33 (Tex.
Crim. App. 2009); Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010).
Error is not harmless “simply because the reviewing court is confident that the result
the jury reached was objectively correct.” Snowden, 353 S.W.3d at 819. Nonetheless,
the presence of “overwhelming evidence of guilt is a factor to be considered.” Motilla
25
v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). Other factors to consider may
include the nature of the error, whether it was emphasized by the State, the probable
implications of the error, and the weight the jury would likely have assigned to it in the
course of its deliberations. Snowden, 353 S.W.3d at 822. The Court should examine the
entire record in a neutral manner, not “in the light most favorable to the verdict.”
Hernandez v. State, 80 S.W.3d 63, 65 (Tex. App.–Amarillo 2002, no pet.) (quoting
Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989)).
In this case there can be no finding beyond a reasonable doubt that the error did
not influence the jury’s decision making. Appellant’s defense was that he was
surprised by Enriquez’s impulsive plan; he was unaware that Enriquez had a gun; he
did not have the intent to commit robbery; and he only went along in order to protect
his cousin (4RR19-20). The physical evidence – the presence of bandanas and duct
tape in King’s vehicle – suggests that the plan was not conceived spontaneously, but
this evidence does not necessarily contradict Appellant’s statement and King’s
testimony that Appellant was not a party to any planning. Instructing the jury
regarding its consideration of extraneous offenses likely called the jury’s attention to
Appellant’s admitted marijuana use. Moreover, the instruction directed the jury to
consider this evidence as relevant to Appellant’s motive, intent, and absence of
mistake. In response to the court’s sua sponte instruction, defense counsel was forced
26
to argue in closing that Appellant’s marijuana use had not been proved beyond a
reasonable doubt and could not be considered (4RR23). But this argument was likely
rejected, because Appellant himself admitted to occasional marijuana use. The
instruction also could have directed the jury’s attention to evidence suggesting that
Appellant had stolen the gun used in the robbery, which further undermined
Appellant’s defense.
For these reasons, the instruction may have influenced the jury’s decision
making process and contributed to Appellant’s conviction; accordingly, reversal is
required.
2. Harm Analysis under the Almanza Standard
Because Appellant preserved his complaint, the Court must reverse if the error
resulted in any harm, regardless of degree. Almanza, 686 S.W.2d at 161, Druery, 225
S.W.3d at 504. To gauge harm, the court reviews (1) the entire jury charge; (2) the
state of the evidence, including the contested issues and weight of probative evidence;
(3) the argument of counsel; and (4) any other relevant information revealed by the
record of the trial as a whole. Id. These factors require a finding of harm in this case.
As argued above, the sole contested issue was whether Appellant was merely
present to look after his younger cousin, or whether he intended to participate in the
robbery. The instruction likely caused the jury to focus on Appellant’s admitted
27
marijuana use and to connect this evidence with the permissible purposes suggested in
the instruction -- most notably, motive. The instruction thus brought the jury’s
attention to the very evidence that the defense wanted to minimize. Counsel’s attempt
to neutralize the instruction by arguing that the burden of proof was not met was likely
unsuccessful. Nothing else in the jury charge served to cure the harm.
It bears noting that the numerous courts that have rejected claims of ineffective
assistance of counsel by validating this strategy could not have come to that conclusion
without implicitly finding that a limiting instruction, in some circumstances, is not
entirely benign. See, e.g., Delgado, supra, at 254; Ryan v. State, 937 S.W.2d 93, 104
(Tex. App.-Beaumont 1996, pet. ref'd) (“[Absent anything in the record explaining
counsel's reasoning], we can only conclude his trial strategy may have been not to draw
further attention to the extraneous offenses”); Curry v. State, 861 S.W.2d 479, 484-85
(Tex. App.-Fort Worth 1993, pet. ref'd) (holding counsel not ineffective for not
requesting limiting instruction during punishment, because instruction was requested
when extraneous offense evidence was admitted and strategy may have been not to
remind the jury of the evidence); Agbogwe v. State, 414 S.W.3d 820, 838 (Tex. App.-
Houston [1st Dist.] 2013, no pet.) (“It is reasonable to conclude ... [that] defense
counsel decided that seeking an instruction to disregard Ozoh's testimony would only
bring further attention to it”); McNeil v. State, 452 S.W.3d 408, 415 (Tex. App.—
28
Houston [1st Dist.] 2014), pet. ref’d (trial counsel's choice not to request a burden-of-
proof instruction and a limiting instruction about extraneous offenses was pursuant to
valid strategy to avoid drawing further attention to defendant's potential extraneous
offenses or misconduct); see also Daniel D. Blinka, Ethics, Evidence, and the Modern
Adversary Trial, 19 Geo. J. Legal Ethics 1, 19 (2006) (noting that opponent of
evidence will “frequently forego limiting instructions for fear that they will only
emphasize the damaging inference”).
If, as the Court of Criminal Appeals has readily acknowledged, foregoing a
limiting instruction to minimize the jury’s recollection of unfavorable evidence
constitutes a valid strategy, Delgado, 235 S.W.3d at 250, then the instruction must, in
some cases, be capable of causing “some harm.” This is such a case, because the
evidence of extraneous conduct was, in the trial court’s own words “very minimal,”
and the jury might very well have overlooked the evidence but for the instruction.
Moreover, the instruction directed the jury to consider the unfavorable evidence for
certain specific purposes, such as motive, to the detriment of Appellant’s defense.
Accordingly, Appellant suffered some degree of harm, requiring reversal.
Issue Four: The trial court abused its discretion in
admitting a video recording that was not authenticated
pursuant to Texas Rule of Evidence 901.
29
A. Facts
During the punishment phase, the State offered State’s Exhibit 62, a video
recording of a conversation between Appellant and codefendant King captured by
patrol car recording equipment shortly their arrests. Sergeant Clopton, the
authenticating witness, testified that:
 most patrol vehicles are equipped with digital cameras;
 Deputy McHugh’s vehicle was equipped with a camera;
 most of these cameras are activated automatically by certain triggers, such as
turning on the emergency lights or sirens, or driving at a certain speed;
 the cameras can also be activated manually;
 once activated, the cameras record until “deactivated”;
 when Clopton arrived at the scene, he viewed a video that was made by
McHugh’s patrol car camera prior to his arrival;
 State’s Exhibit 62, a DVD, was a fair and accurate copy of the recording
Clopton had viewed at the scene.
5RR24-27.
Appellant objected to the admission of the recording on the grounds that the
State failed to demonstrate that the recording had not been tampered with or where it
originated from. The defense further objected that Officer McHugh’s testimony was
necessary to authenticate the video because Sergeant Clopton could not establish
30
whether the recording device was working properly or if the original recording was
accurate or altered. 5RR27-28. The trial court overruled the objection and admitted the
exhibit. 5RR28.
The exhibit was partially published but the audio equipment malfunctioned; the
equipment was subsequently fixed so that the jury could play the recording during
deliberations. 5RR28-31. In closing argument, the State urged the jury to play the
recording and described its most damaging contents in detail. 5RR48-50.
The video depicts the patrol car responding to the scene of the traffic stop, and
then proceeding to the scene of the home invasion. Once there, the hood is raised,
blocking the camera’s view. During the portion of the video that contains the
conversation between Appellant and King, which begins at approximately 21:52:00 of
the time display, the video depicts only the raised hood of the vehicle. SX62.
B. Standard of Review
A trial court’s evidentiary rulings regarding expert testimony are reviewed under
an abuse of discretion standard. Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App.
2007); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (expert
testimony). A trial court abuses its discretion when its decision lies “outside the zone
of reasonable disagreement.” Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App.
2007).
31
C. The trial court abused its discretion in admitting the video
recording because it was not authenticated.
Authentication is a condition precedent to admissibility that may be satisfied by
“evidence sufficient to support a finding that the matter in question is what its
proponent claims.” TEX. R. EVID. 901(a). Rule of Evidence 901 governs the
authentication requirement for the admissibility of evidence and is the appropriate
analysis for the authentication of recordings. Angleton v. State, 971 S.W.2d 65, 69
(Tex. Crim. App. 1998).
Subsection (a) states that the authentication requirement for admissibility of
evidence is satisfied by proof sufficient to support a finding that the matter in question
is what its proponent claims it is. TEX. R. EVID. 901(a). Subsection (b) provides a
nonexclusive list of methods to authenticate evidence. One example given is the
testimony of a witness with knowledge that a matter is what it is claimed to be. TEX. R.
EVID. 901(b)(1). Another method is showing “a process or system used to produce a
result and showing that the process or system produces an accurate result.” TEX. R.
EVID. 901(b)(9).
Applying these provisions, there are at least two ways to authenticate
photographic evidence including videos. Standmire v. State, --- S.W.3d ----, 2014 WL
3882940, at *6 (Tex. App.—Waco Aug. 7, 2014, pet. ref’d). One way is by testimony
that the photo or video is an accurate representation of the object or scene in question.
32
Id.; Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). In this situation,
the authenticating witness is not required to be the person who operated the camera or
video equipment, but must have been a witness to the contents of the recording. Id.
If, as in this case, the authenticating witness did not witnesses the events
recorded, a video may be authenticated by testimony that the process or system that
produced the photo or video is reliable. Id.; Reavis v. State, 84 S.W.3d 716, 720 (Tex.
App.-Fort Worth 2002, no pet.). This method is commonly used with security videos.
Id. For authentication of such photographic or video evidence, the authenticating
witness usually (1) describes the type of system used for recording and whether it was
working properly; (2) testifies whether he reviewed the video or photos; (3) testifies
whether he removed the video or device that stores the photos; and (4) testifies whether
the video or photos have been altered or tampered with. Id.; see also Randell v. State,
No. 07–11–00493–CR, 2013 WL 309001, *2–3, 2013 Tex.App. LEXIS 742, *5–7
(Tex.App.-Amarillo Jan. 25, 2013, pet. ref'd); Warren v. State, No. 08–11–00029–CR,
2012 WL 651642, *1–2, 2012 Tex.App. LEXIS 1544, *3 (Tex.App.-El Paso Feb. 29,
2012, no pet.) (not designated for publication).
In the instant case, Sergeant Clopton testified that he viewed the video when he
arrived at the scene of the arrest, but his testimony did not establish (1) whether the
equipment was working properly; (2) how the recording device was activated; (3) how
33
it was deactivated; (4) what type of memory device the recording was stored on; (5)
what type of equipment he used to view the recording; (6) if the recording was stored
on a removable memory device, who removed the memory device; (7) whether the
memory device was tampered with prior to Clopton’s viewing of the recording; (8)
how and by whom the recording was reproduced onto DVD. While Sergeant Clopton
was generally knowledgeable about the recording equipment installed in patrol
vehicles; he had no personal knowledge of the reliability of the equipment in Deputy
McHugh’s vehicle.
A review of cases in which video recordings were found to be properly
authenticated by a witness with knowledge of the recording system indicate that
Clopton’s testimony falls far short in providing the necessary information about how
the recording was created and reproduced.
In Reavis v. State, 84 S.W.3d 716 (Tex.App.-Fort Worth 2002, no pet.), the Fort
Worth Court of Appeals held that a trial court did not abuse its discretion in admitting
a security videotape into evidence even though the authenticating witness at trial had
not personally witnessed the events depicted on the videotape. Id. at 720. The
authenticating witness testified as follows: on the morning of the day of the offense, he
loaded the videotape into 24-hour-time-lapse recorder and pressed “record;” he
removed the videotape 15 minutes after the defendant was apprehended; he viewed it
34
with police officers; and he viewed tape again just prior to his trial testimony and what
he saw was identical to what he had seen on tape on day of offense. Id.
In the instant case, Sergeant Clopton did not establish how the equipment was
activated or deactivated; who accessed the recording; how they accessed it; what it was
stored on; or how it was reproduced for trial. Moreover, Sergeant Clopton could not
establish whether the recording had been tampered with prior to his arrival or whether
Deputy McHugh’s recording equipment was functioning properly. Clopton’s basic
knowledge of the sheriff department’s recording equipment and his viewing of the
recording are insufficient to demonstrate that the system produced an accurate
recording.
In Page v. State, 125 S.W.3d 640 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref'd), a grocery store’s videotape of a robbery was sufficiently authenticated to be
admitted into evidence at an aggravated robbery trial, even though the store employee
who testified to accuracy of tape had not witnessed events that occurred in videotape.
The employee testified that the grocery store’s “brand-new digital recording system”
recorded images from 16 video cameras and automatically saved those images onto a
computer hard drive. Id. at 648. The employee further testified that he accessed the
digital recording system’s hard drive shortly after the robbery and viewed the
recording of the robbery with police officers. Id. The employee then copied the
35
recording of the robbery onto a videotape and gave it to the officers. Id. Additionally,
the employee viewed the videotape before trial and testified that it had not been altered
in any way. Id. The Court held that this evidence was sufficient to enable a reasonable
juror to conclude that the videotape was “what the State claimed it to be” and that the
trial court did not abuse its discretion in admitting the videotape of the robbery into
evidence. Id. at 648-49.
In contrast, all the State established about the recording in the instant case is that
the equipment may be activated in a variety of ways, and that Clopton viewed the
recording once at the scene and viewed a copy of it once before trial. The State did not
establish how the equipment was activated in this instance, what type of device it was
stored on, who accessed the recording, how Clopton viewed it at the scene, or how and
by whom it was reproduced for trial.
The Fifth Circuit has similarly required more detail regarding the creation and
duplication of photographic evidence. In United States v. Taylor, 530 F.2d 639, 641–
42 (5th Cir.), cert. denied, 429 U.S. 845, 97 S. Ct. 127, 50 L. Ed. 2d 117 (1976), the
court held that photographs were properly authenticated by government witnesses who
were not present during the actual robbery but testified as to the manner in which the
film was installed in the camera, how the camera was activated, the fact that the film
was removed immediately after the robbery, the chain of its possession, and the fact
36
that it was properly developed and contact prints made from it. Id. at 642-43.
The deficiencies in Clopton’s testimony are more critical here because the
recording is essentially an audio recording. The open hood of the patrol car blocks the
camera’s view, so there is no picture to verify that the tape is continuous and
uninterrupted, a factor courts have considered in finding a video recording
authenticated. For example, in Ballard v. State, 23 S.W.3d 178, 180 (Tex. App.-Waco
2000, no pet.), officers fitted an undercover informant with video recording camera
and activated the camera as the informant exited the officer's vehicle. Id. After
purchasing cocaine from the defendant, the informant then met back with an officer,
who turned the video recording off. Id. In determining that the videotaped recording
was properly authenticated under Rule 901, the court noted that the recording was
“continuous and uninterrupted,” the officer corroborated specific events in the video
recording, and the fact-finder could compare the recorded video with the physical
appearance of the defendant. Id. at 182; see also Watson v. State, 421 S.W.3d 186, 192
(Tex. App.—San Antonio 2013, pet. ref’d) (video recording was authenticated where
the officers had personal knowledge of the contents contained on the videotape, the
tape was continuous and uninterrupted, the officers corroborated specific items in the
recorded video, the fact-finder could compare the recorded video with the physical
appearance of the defendant, and there was no evidence of tampering).
37
In the instant case, there is no video action to confirm that the recording is
continuous and uninterrupted, so simply viewing the video is not sufficient to
demonstrate that it is accurate and has not been altered. Thus, it was more important to
establish that the recording equipment was reliable and to establish how the recording
was created, accessed, and reproduced.
A number of unpublished cases also demonstrate that more detail regarding the
creation and reproduction of the recording is necessary to establish the reliability of the
recording system when there is no witness to the recorded events. In Warren v. State,
No. 08–11–00029–CR, 2012 WL 651642 (Tex. App.-El Paso Feb.29, 2012, no pet.)
(mem. op., not designated for publication), a burglary prosecution, the court found a
security DVD to be sufficiently authenticated by testimony from a maintenance
supervisor of the apartment complex, who explained how the security cameras work
and testified that the he removed the SD card from the camera at issue, reviewed its
contents with the complainant, and copied four images onto a DVD, which was given
to the complainant. Id. at *2. The complainant then gave the DVD to the police. Id.
The supervisor testified that the camera at issue was capable of making true and
accurate recordings and that the DVD contained a true and accurate depiction of
images taken by the camera. Id. He stated that he did not “alter or change the images as
[he] initially saw them from the original SD card in any way.” Id. The supervisor
38
reviewed the DVD before trial and determined that it was “a true and accurate
depiction and recording of the four images that [he] saved off that SD card.” Id. In
addition, the complainant was asked whether he altered the DVD that he received from
maintenance personnel, and answered, “No, it was an exact copy on a nonrewritable
DVD that maintenance had given me, containing four clips.” Id.
In Randell v. State, 07-11-00493-CR, 2013 WL 309001, at *2 (Tex. App.—
Amarillo Jan. 25, 2013, pet. ref’d) (mem. op., not designated for publication), a
security video was sufficiently authenticated by a manager’s testimony that he
reviewed the video after being informed of the theft; that he or the store director can
“burn off” parts of the video for the police; that he did so in this case and provided the
relevant part to the police; that the recording was made simultaneously with the actions
recorded on the video; that he reviewed the contents of the copy prior to testifying; that
it had not been tampered with; that the recording was made on a device capable of
making an accurate recording; that he was trained and capable of operating the
computers or devices that record images from the surveillance cameras; and that the
recording offered was an accurate representation of the events “as viewed by the
camera.” Id. at *2.
In Garcia v. State, 05-07-00540-CR, 2008 WL 2655622, at *4 (Tex. App.—
Dallas July 8, 2008, pet. ref'd) (mem. op., not designated for publication), a security
39
video was properly authenticated by an apartment owner’s testimony that on the date of
the murder he had given police a security videotape. Id. The videotape was recorded by
a camera at his apartment complex during the hours surrounding the offense. Id. The
owner, who had installed the camera himself, testified that the camera was working
properly on the night of the offense and he had personally loaded the videotape into the
camera. Id. He noted that the date stamp on the videotape was correct, except for the
year 2008, which he had not programmed to show the correct year of 2006. Id. He
further noted that the time stamp on the videotape was accurate “within a few
minutes.” Id. The owner further testified that he personally checks the videotapes to be
sure the security cameras at the apartment complex are working. Id.
In Teeter v. State, 05-06-00309-CR, 2007 WL 510356 (Tex. App.—Dallas Feb.
20, 2007, no pet.) (mem. op., not designated for publication), a video recording made
on a school bus was properly authenticated by the transportation custodial director for
the school district. Id. at *9. The director described that each school bus has a “camera
eye” or lens that is located just above and to the right of the bus driver and a video
cassette recorder (VCR) in a locked box that is bolted to the floor or the underside of
the dashboard. Id. He testified that the VCRs are inspected regularly to make certain
they are operating properly, and each VCR is activated when the school bus ignition is
turned on and automatically stops when the school bus ignition is turned off. Id. The
40
director retrieved the videotape from the bus, put it in his desk, and gave it to the police
chief. Id. The director testified that he watched the videotape after he retrieved it and
again before testifying, and the videotape was in the same or similar condition and
there were no additions or deletions to the videotape. Id. Additionally, the school
children's testimony described the events that occurred on the school bus, and these
events appeared on the video. Id.
In Brown v. State, 14-03-01265-CR, 2005 WL 363950 (Tex. App.—Houston
[14th Dist.] Feb. 17, 2005, pet. ref'd) (mem. op., not designated for publication), a store
security video was properly authenticated by the manager’s testimony that he came to
the store, stopped the videotape, and watched five to ten minutes of the tape to see if it
had captured the incident. Id. at *4. The manager and two other witnesses were present
when the videotape was removed from the recorder in the store's surveillance room; all
three witnesses testified that the outside cannister of the videotape was damaged. Id.
The witnesses also testified that the reel of tape inside was twisted and stretched in one
section but that they did not believe that the tape itself was damaged. Id. at *4-5. An
investigator for the Harris County District Attorney's Office also testified that the
outside cannister of the tape had been damaged but the tape itself had not been. Id. at
*5. The investigator replaced the damaged canister with an undamaged canister and
left the original reel of tape, then re-recorded the actual occurrence from State's Exhibit
41
4–A into a twenty-minute version which was admitted as State's Exhibit 6 and shown
to the jury. Id. Both the manager and the investigator testified that the exhibit is a true
and accurate representation of the original. Id.
As these cases demonstrate, authenticating witnesses must provide testimony
demonstrating, at a minimum, how the recording was accessed and reproduced.
Additionally, personal familiarity with the recording equipment is necessary to
demonstrate that the equipment was capable of producing an accurate recording.
Sergeant Clopton’s testimony wholly failed to provide this critical information.
Clopton’s testimony fell far short of the detail provided in the cases discussed;
accordingly, the trial court’s ruling admitted the exhibit was outside the zone of
reasonable disagreement.
D. The error harmed Appellant’s substantial rights.
An appellate court reviews an erroneous admission of evidence as non-
constitutional error, subject to a harm analysis under rule 44.2(b) of the Texas Rules of
Appellate Procedure. TEX. R. APP. P. 44.2(b). The court disregards non-constitutional
error unless it affects the substantial rights of the defendant. Id. “A substantial right is
affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997). Neither the State nor the appellant has the burden to show harm when an error
42
has occurred; rather, after reviewing the record, it is the appellate court’s duty to assess
harm. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001).
A conviction or punishment should not be overturned for such error if, after
examining the entire record, there is a fair assurance that “the error did not have a
substantial and injurious effect or influence in determining the jury’s verdict.” Garcia
v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). But the court must reverse a
conviction or punishment for non-constitutional error if it is unclear whether the result
of the trial was free from substantial influence of the error. Barshaw v. State, 342
S.W.3d 91, 94 (Tex. Crim. App. 2011); Burnett v. State, 88 S.W.3d 633, 637–38 (Tex.
Crim. App. 2002)).
When conducting a harm analysis, the court considers the entirety of the record,
including jury instructions and closing arguments. Motilla v. State, 78 S.W.3d 352,
355–56 (Tex. Crim. App. 2002). In determining whether the error was harmless, the
court considers the nature of the evidence supporting the verdict, the character of the
alleged error, and how the error might be considered in connection with other evidence
in the case. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). Other
relevant factors may include whether the State emphasized the error and whether the
erroneously admitted evidence was cumulative. Id.
The only other evidence at punishment was documentation of Appellant’s ten
43
prior convictions. SX66-76. The State presented evidence of a second degree felony
conviction for possession of a controlled substance; three state jail felony convictions
for theft of a firearm, burglary of a building, and unauthorized use of a motor vehicle;
and six misdemeanor convictions. All of the offenses were committed when Appellant
was a teenager, and none involved violence. Defense counsel pointed out in argument
that the felony possession case involved a prescription ADHD drug. 5RR38.
While Appellant’s criminal history certainly factored into the jury’s decision, the
video recording contained very damaging evidence that was at least equally important.
In response to a relevance objection, the State pointed out that the video “shows his
involvement in the planning and it shows his response after the other robber was killed
and they’re laughing and joking about it in the back seat of that patrol car. It goes
directly to his character. It’s exactly the kinds of things the jury needs to hear about.”
5RR23.
The State highlighted in closing the most damaging portions and argued that
they showed Appellant to be a calculating and remorseless criminal. 5RR48-49. The
State pointed out that the video recorded Appellant and codefendant King conspiring to
get their story straight and fabricating a story about dropping off a friend in the
neighborhood. While this evidence was cumulative of King’s trial testimony, several
additional damaging portions were not cumulative.
44
For example, the State also pointed out that they discussed the incriminating
evidence, namely, the duct tape and the gun Appellant had wiped and tossed. The State
argued that this conversation indicated that the robbery was planned, rather than
spontaneous. 5RR48-49.
The State emphasized that they discussed being “nice to the cops,” and “acting
like little kids.” The State argued that this was the “same act that he put on when he
was giving his confession,” and that the jury should not fall for Appellant’s polite
demeanor in the confession video because it was “a game” and “a ruse.” 5RR48-49.
The State also directed the jury’s attention to the fact that they were laughing
and joking about being on the show “Cops,” which demonstrated that they were not
scared or worried. The State argued that their demeanor showed a stunning lack of
remorse, considering that a firearm had been discharged and they had abandoned their
friend. The State urged that “[t]hese are the kinds of things that show you what kind of
person he really is.” 5RR48-49.
In addition to the damaging portions discussed by the State in argument, the
video also captured Appellant and King using offensive language, singing, and
discussing whether the complainant’s wife was “hot.” SX62.
In these circumstances there is no fair assurance that the error did not influence
the jury’s assessment of punishment. The recorded conversation discredited
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Appellant’s characterization of his role in the offense – that he was surprised by
Enriquez’s actions and did not plan or willingly participate in the robbery. As argued
by the State, the recording portrayed Appellant as a calculating and remorseless
criminal. This was likely given significant weight by the jury, as it bore directly on the
circumstances of the offense and Appellant’s character.
The punishment range was 15-99 years and the jury assessed a sentence of 20
years. CR114. While the sentence is at the low end of the range, the jury likely took
account of Appellant’s youth, which even the State argued was a mitigating factor
(5RR53). It is at least unclear whether the error influenced the verdict; accordingly, the
Court should find that the error affected Appellant’s substantial rights and reverse the
judgment on punishment. Barshaw, 342 S.W.3d at 94; Burnett, 88 S.W.3d at 637–38.
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PRAYER
Appellant respectfully requests that the Court reverse his conviction and
remand the cause for a new trial, or alternatively, reverse the trial court’s judgment
as to the punishment and remand the cause to the trial court for a new trial on
punishment only.
Respectfully submitted,
/s/ Adam B. Brown
ADAM B. BROWN
SBOT No. 01728540
300 Main, Ste. 200
Houston, Texas 77002
(713) 223-0051
(713) (FAX)
adambrownlaw@yahoo.com
ATTORNEY FOR APPELLANT
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CERTIFICATE OF SERVICE
This amended document has been served on the following parties electronically
through the electronic filing manager contemporaneously and in conjunction with e-
filing on December 16, 2015.
Alan Curry
Assistant Harris County District Attorney
curry_alan@dao.hctx.net
/s/ Adam B. Brown
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that the relevant sections of this computer-
generated document have 9,952 words, based on the word count function of the word
processing program used to create the document. TEX. R. APP. P. 9.4 (i).
/s/ Adam B. Brown
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