Angel Arellano v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00466-CR
___________________________
ANGEL ARELLANO, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 6
Tarrant County, Texas
Trial Court No. 1555725
Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Angel Arellano appeals from his conviction for burglary of a vehicle
and argues that the admission of a security video under the business-records
exception to the hearsay rule was an abuse of discretion because it was not regularly
kept. Because the video met the requirements for admissibility under the exception,
its admission was not an abuse of discretion.
I. BACKGROUND
Michael Brooks was working at his restaurant-supply store on July 24, 2018.
When he realized that he had left his phone in his car, which he had parked near the
front door, he went out to get it. Brooks saw that his “car had been not how [he] left
it”1 and that his phone was gone. Brooks knew that the restaurant across the street
had security cameras so he went there to see if the videos showed what happened to
his phone. The video showed a man getting into the passenger seat of Brooks’s car.
Two days later, the restaurant manager and Brooks saw a man in the restaurant who
looked like the man in the video. Brooks called the police; the man, later identified as
Arellano, was arrested.
Arellano was charged by information with the misdemeanor offense of burglary
of a vehicle. See Tex. Penal Code Ann. § 30.04(a), (d). At the bench trial, the owner
of the restaurant, Edward Sullivan, testified regarding the security video. The
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Brooks stated that “[t]here was a Styrofoam cup with Coke spilled all over the
place and the console was open.”
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restaurant has sixteen cameras that record twenty-four hours a day. Each records on
an approximate thirty-day loop such that older portions of the video feed would be
recorded over with new video when a certain storage limit is reached.2 Sullivan
testified that the videos are made in the regular course of the restaurant’s business.
He agreed that the videos are not maintained or kept indefinitely because of the loop
process but stated that “[i]f something’s on there” or there is an “issue,” he regularly
downloads the excerpt onto a flash drive, which is then kept in the regular course of
business. If an excerpt is not downloaded, it eventually is recorded over. Sullivan
estimated that he downloads such excerpts between one and five times each week.
Sullivan also signed a business-records affidavit in which he swore that the video
excerpts from each camera at the time of the offense “were kept in the course of
regularly conducted business activity.”
Arellano objected to the admission of the video excerpts because they were
“irregularly kept” and, thus, inadmissible hearsay. See Tex. R. Evid. 802, 803(6)(B).
The trial court overruled the objection and admitted the affidavit and video excerpts
into evidence. The trial court found Arellano guilty and imposed a 365-day sentence
with a $4,000 fine. On appeal, Arellano argues that the trial court’s admission of the
2
This means that “the cameras continually record, and any footage not
recovered after 30 days cannot be retained thereafter.” Price v. Peerson, No. CV 13-
3390 PSG (JEMx), 2014 WL 12558253, at *9 (C.D. Cal. Apr. 23, 2014) (order), aff’d,
643 F. App’x 637, 638 (9th Cir. 2016) (mem. op.).
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excerpts was an abuse of its discretion. See King v. State, 953 S.W.2d 266, 269 n.4 (Tex.
Crim. App. 1997).
II. ADMISSION OF VIDEO EXCERPTS
Records of a regularly conducted activity are admissible as an exception to the
hearsay rule and, in the case of business records, are self-authenticating if the records
are accompanied by an affidavit. See Tex. R. Evid. 803(6), 902(10). Arellano asserts
that the video excerpts were inadmissible hearsay because they were not “kept in the
course of a regularly conducted business activity.”3 Tex. R. Evid. 803(6)(B). He
argues that because the restaurant’s security cameras record on a loop, any captured
video is eventually recorded over; thus, he contends that the security video was not
“kept” as required by rule 803(6).
But Sullivan testified that if an incident occurs, he will download the video feed
from the relevant time period to a flash drive and then keep the drive in the regular
course of business. As the State points out, the video excerpts, which were kept in
the regular course of the restaurant’s business, are different from the entirety of the
restaurant’s security-camera feeds. The State sought to introduce only the
downloaded excerpts from July 24, 2018; the restaurant undisputedly and regularly
3
Arellano does not dispute that the excerpts were self-authenticated through
Sullivan’s affidavit.
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kept such excerpts.4 Because the State satisfied the requirements of rule 803(6)(B) for
admission of the excerpts, the trial court did not abuse its discretion by admitting
them over Arellano’s objection. See, e.g., Lewis v. State, No. 02-16-00179-CR, 2017 WL
2686325, at *10–11 (Tex. App.—Fort Worth June 22, 2017, pet. ref’d) (mem. op., not
designated for publication); Caceres v. State, No. 14-15-00446-CR, 2016 WL 3554394,
at *3 (Tex. App.—Houston [14th Dist.] June 28, 2016, pet. ref’d) (mem. op., not
designated for publication); cf. United States v. Wells, 262 F.3d 455, 462–63 (5th Cir.
2001) (holding “oral testimony regarding the destroyed ledgers falls outside the
hearsay exception under [federal evidentiary] Rule 803(6). Therefore, the district
court clearly abused its discretion in admitting the hearsay testimony of Antoine with
respect to the drug ‘ledgers.’”).
III. CONCLUSION
We overrule Arellano’s issue and affirm the trial court’s judgment. See Tex. R.
App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 26, 2019
Sullivan averred in his affidavit and during his trial testimony that any
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downloaded video excerpts were regularly kept. Contrary to Arellano’s argument,
there was no conflict on this issue between Sullivan’s affidavit and testimony.
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