Victor Reshay Montgomery v. State

Montgomery-VR v. State

IN THE

TENTH COURT OF APPEALS

No. 10-96-139-CR

        VICTOR RESHAY MONTGOMERY,

                                                                                       Appellant

        v.

        THE STATE OF TEXAS,

                                                                                       Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 30,566

O P I N I O N

          A jury convicted Victor Reshay Montgomery of burglary of a building. Tex. Penal Code Ann. § 30.02 (Vernon 1994 & Supp. 1997). He appeals, arguing that the trial court abused its discretion when it excluded parts of Montgomery's videotape. We will affirm.

          On December 30, 1995, Barbara Saucedo watched two men approach Edward E. Worth's garage. One of the men forced the garage door open and entered the garage. The man exited carrying some boxes. Saucedo called the Hillsboro police who immediately apprehended the men in a field behind the garage. When the police arrested them, they were in possession of a box containing a cordless screwdriver, a rachet set, and several other items. The police later discovered that Worth owned these items. Montgomery was indicted for burglary of a building.

          During trial, Montgomery's attorney, through Saucedo as the witness, attempted to introduce a videotape depicting the view from Saucedo's back door, which was where she was standing when she observed the burglary. The State objected arguing that the videotape did not accurately depict what Saucedo observed on December 30, 1995. Not only was the videotape not filmed from the same vantage point as Saucedo when she saw the burglary, but the trees contained foliage which was not present on December 30, 1995. The court sustained the State's objection. Although the court excluded the portion of the tape depicting the view from Saucedo's back door, the court admitted the rest of the videotape for the limited purpose of showing the height and location of the surrounding buildings.

          Montgomery complains in his sole point of error that the court erred in excluding the part of the videotape depicting the view from Saucedo's back door. Unless there is a showing of an abuse of discretion, we will not disturb the trial court's decision to admit or exclude evidence. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993); Burke v. State, 930 S.W.2d 230, 235 (Tex. App.—Houston [14 Dist.] 1996, pet ref'd). Videotapes may be admitted into evidence if they are properly authenticated and relevant to the issues. Gordon v. State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990); see also Kephart v. State, 875 S.W.2d 319, 322 (Tex. Crim. App. 1994). In order to properly authenticate a videotape, the proponent of the evidence must demonstrate that the videotape accurately represents the event or scene at the time it occurred. Kephart, 875 S.W.2d at 322-23.

          Having reviewed the record, we conclude that the court did not abuse its discretion in excluding this part of the videotape. When it was offered outside the presence of the jury, Saucedo testified that the view from her back door was much higher than the view depicted by the videotape. She further testified that there was no foliage on the trees on December 30. Based on this testimony, the court sustained the State's objection to the videotape because it did not fairly and accurately represent the scene. Montgomery did not present any further evidence to show that this videotape was an accurate depiction of the scene at the time of the burglary. Because Montgomery did not properly authenticate the videotape, the trial court did not err in excluding this portion of the videotape. We overrule Montgomery's point and affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed March 5, 1997

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FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 22, 1998

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