376 F. 3d 316
9 U.S. v. Jon es,
900 S.W.2d 392
9<^Tex. Prac. Goode, Wellborn, Shalot llule 201(g),(f), 80
9 ,1 CD iTex . Cade C rim. Proc. Ann. Art.36.19 (Vernon 2004), 36 14-36.1 8
' 16 *'• Huizar v. State,
12 S.W. 3d 479(Tex. Crim. App. 2000)
10\^Alamanzar v State, 686 S.W.2d 157,171 (Tex. Crim. App 1 985)
10 Guevara v State, 152 S W.
3d 45, 52-54(Tex. Grim. App 2004)
10 Middleton f. State ,
125 S.W.3d 450, 453(Tex. Crim. App 2003)
Request for Discretionary Review
TO THE HONORABLE JUSTICE OF SAID COURT:
I, Jose Godinez Matute, Appellant, by and through himself, pro
se in the entitled and styled cause respectfully requests this
Honorable Court reconsider's the true facts outlined in this
Petition For Discretionary Review. In doing so, the Court of
Appeals overturns the verdict. Due to the overwhelming lack of
relevant evidence pertaining to the issues,-that the verdict
is clearly wrong and unjust. To Rule 2 of the Texas Rules of
Appellate Procedure, for allowing filing of fewer copies of the
Petition For Discretionary Review to be filed with the Court
of Criminal Appeals. Also to inform the Courts to forward copies
to the Prosecutor on appeal and the State Prosecuting Attorney,
due to the fact that the Appellant does not have access to a
photo copier.
Statement of the Case
The Appellant ,•; Jose Godinez Matute was indicted with aggravated
sexual assualt of a child. See Tex. Penal Code §22 .021 (a)(1 )(B),(a)
(2)(B). The trial took place on 23 August 2013, 403rd Judicial
District Court. The State elected to waive Counts II, III, IV,
and V of the Indictment. The Court found the Appellant guilty
of One Count of Aggravated Sexual Assault of a Child by penetrating
the child's sexual organ. The jury was elected for punishment--
with the option of a minimum of 5 years probation. The jury imposed
the sentence of 30 years in the Texas Department of Criminal
Justice on August 23, 2013. The Appeals Attorney, Kristen Jernigan,
filed for Notice of Appeals. As of November 26, 2014, the Court
of Appeals judgement was affirmed.
£T
Issues 'Presented
"Issue One: The trial court committed egregious error by failing
to sua sponte included a instruction on the burden of proof as
to extraneous offenses in the guilt-innocence phase of the trial.
"Issue Two: The trial court committed egregiuos error by failing
to sua sponte include an instruction on the burden of proof as
to extraneous offenses in the punishment phase of the trial.
• Issue Three: The State did not prove''beyond a reason of doubt
clear and convincing, "Legal Sufficiency of the Evidence", to
show that the Appellant "intentionally or knowingly" commit
aggravated sexual assault of a child, Tex. Penal Code §22.021 (a)(1 )
(B)(i),(a)(2)(B).
•Issue Four: The court erred in not allowing the Appellant to
present the video tape of the interrogation between Detective
Bonilla and the Appellant. Which if viewed by the jurors could
have affected a different outcome of the case, Tex. R. Evid.
103, 401, 403, 404(b), 405, 806, 1002; Tex- R. Court Relevancy
Rule 404(a), CD,(b!)i
Statement of the Facts
£
Ms. Joanna Ramirez is the mother to B.A., the alleged victim.
On 04/21/2012, Ms. Ramirez endangered her 11 year old child by
not providing the proper parental supervision, to allow her child to
enter a black vehicle with an unknown male driver. Which calls
into question on Ms. Ramirez's parental skills to provide a safe
environment for her child. The victim was reported approximately
6:4B pm. Approximately an hour later, the victim was walking
back to the apartment, 2205 Muroc St. #104, Austin, Texas. The
victim took the officer to the scene where the sexual assualt
had taken place. The officer took into evidence an open empty
condom wrapper that was found at the scene of the apparent crime.
During the investigation, Ms. Ramirez gave an unknown phone
number,,(405-537-3339), that appeared on her call history for
her cell phone. The victim was taken to a Sexual Assault Forensic
nurse for a SAFE examination. The victim stated that she had
sex with another Suspect, (Javier).
The unknown number was registered to the Appellant, the victim
talk to a suspect Antonio through Facebook and thrtt&qh the Appellant's
cell phone. At the Center for Child Protection, on 4/24/2012,
the victim stated that she also knows another person as "Carlos
Pinto", (known as Concepcian Martinez Pinto). The victim confirmed
that she had sex with Antonio.
Detactive Kelly and Detective Watts went to the victims school,/
(Burnet Middle School), where one of the victims school friend
stated on 4/25/2012, the victim told her that she had two boyfriends,
Antonio and Pinto.
The Grand Jury originally presented this indictment, in the
County of Travis, and State of Texas, Five Counts of Sexual..Assault
of a child younger than 17 years of age. Four of the Five indictment
counts were dropped.
Summary of the Arguments
The trial court did egregiously err by not instructing the
jury on the burden of proof as to extraneous offenses: Tex. Code
Crim. Proc. Ann. Art. 36.14 and 36.19, (Vernon's 2004), governs
the Court's duty to give instruction to the jury which also includes
the correct laws applicable to the case, and a standard review
if this is breached.
The Court in Rodgers v. State,
180 S.W.3d 716 (Tex. App-Waco,
2005 no pet.), decided that a trial judge must instruct the jury
as to the burden of proof at the guilt-innocence phase of a trial
regardless of whether the instruction was requested by the defendant.
7
In this case, adopting the position set forth above, the trial
courA erred in failing to give the sua sponte instruction on
Mirden of proof as to give the sua sponte instruction on burden
of proof as to extraneous matters. The State submitted extraneous
evidence that affected the course on the outcome of official
proceeding, VTCA. Penal Code §§37.02, §§37.03, §§37.04(a), which
resulted in erraneous ruling, Tex. Rules of Court, Rules of Evidence
103. The Appellant did suffer egregious harm due to the extraneous
evidence against him, requiring an aquittal or a new tQal as
to guilt-innocence phase.
The State had admitted that the trial court did erred during
I
the punishment by not instructing the jury, sua sponte on the
burden of proof for extraneous offenses. The State had noted
that the Appellant was facing up to 99 years, with the minimum
of 5 years probation, which was eliminated when the wittness's
testified on hear-say from the victim with no creditable evidence
from tine State. It is the court's responsibility to give instructions
to the jury, under IHex. Rules Court, Hearsay Rules 801,803, B05,
and B06. PiUeo ilh"cJ.udiilng the correct laws applicable to the case
and the standard of review if the duty is breached. At punishment,
the court had a duty to instruct the jury that the State had
the burden of proof without reason of doubt on the extraneous
accusations from the State and the victim, whether or not the
instructions were requested. The trial court breached these standards
which affected the introduction of extraneous matters in the
punishment. The punishment egreiously harmed the Appellant, requiring
a sentence reduction or a reversal for a new punishment hearing.
Unless extraneous issues restults in an aquittal or a new trial.
The victim impeached her own testimony with conflicting statements,
about ha,yj.ng.multiole sexual history with multiple perpetrator's
which calls into question on the Appellants Actual 'innocence
addressed in Haley v. Dretke,
376 F. 3d 316. If?her statements
were t-true than the other perpetrator's would have also been indicted
The evidence the State submitted did not show any relevancy" to
the offense charged. In U.S. V. Jdries,
900 S.W. 2d 392,(the Court
of Appeals Sixth Circuit). The trial judge entered a judgement
of an acquittal, on the grounds that there had been no pro^f
by evidence. Tex. Prac. Goode, Wellborn, and Shalot, Rule 201(g),
(f),80.
Arguments with Supporting Authorities
Because it is Appellant's view that a trial court's duty to
properly instruct the jury on the law is the same at the guilt/
innocence phase of the trial and the punishment phase of the
trial. It is also the Appellant's view that the State lacked
the proper evidence to prove to the jury, without a reason of
doubt, that the Appellant did not execute the offense, but that
there was evidence to prove that the multiple perpetrator's had
committed the offense.
Since Appellant's complaint with the trial court's charge
is Art. 36.14 error, the standard of review is set out in Tex.
Code Crim. Proc. Ann. Art. 36.19(Vernon 2004).
Art. 36.19 states: "Whenever it appears by the record in any
criminal action upon appeal that any requirement of Articles
36.14, 36.15, 36.16, 36.17, and 36.18 has been disregarded; the
judgement shall not be reversed unless the error appearing from
the record was calculated to injure the rights of the defendant,
or unless it appears from the record that the defendant has not
had a fair or impartial trial.
Failing to charge on the burden of proof of the State as to
extraneous character evidence is subject to the same type of
harm analysis as any other charge error under Art. 36.19; Huizar
v. State,
12 S.W. 3d 479 (Tex. Crim. App. 2000), because instructions
on the burden of proof as to extraneous offense/bad act character
evidence are part of the law of the case under the common law,
the trial court is required to give such an instruction sua sponte.
In Rodgers v. State 180 S.W.33d 716, 722-725 (Tex. App.-Waco
20D5, no pet.), this court concluded that even without a request
for a specific instruction or an objection the burden of proof
instruction as to extraneous matters is part of the law of the
case and is necessarly to be included in the instruction to the
jury if such evidence is admitted. This court went on to say
that an Appellant need not have objected at trial to raise the
error on appeal. Applying Huizar reasoning, this Court opinioned
that the import of objecting to the absence of the burden of
proof instruction extends only to deciding the application standard
for harm analysis.
The Texas Court of Criminal Appeals Has thus far not ruled
on whether a trial court is required to give such an instruction
sua sponte in the guilt/innocence phase of the trial.
Recently, the Texas Court of Criminal; Appeals reiterated that
Alamanzar v. State, 6B6 S.W. 2d 157, 171 (Tex. Crim. App 19B5),
is the standard under which charge error is analized, and that
preservation of error is not an issue preventing review, but
is only an issue as to the level of harm analysis to apply Guevara
v. State,
152 S.W.3d 45, 52-54 (Tex. Crim. App 2004); Middleton
v. State,
125 S.W.3d 450, 453 (Tex. Crim. App 2003).
In a case originating from the same trial court, this court
has also recently ruled that the type of error is presented in
the instant case are subject to the Huizar reasoning; Rodgers
v. State
180 S.W.3d 716 (Tex. App-Waco 2005,=no pet.)
\0
There is a split in the intermediate Appellate Courts of Texas
as to whether or not Huizar analysis applies to the guilt/innocence
phase of the trial. Some court's have declined to require a sua
sponte instruction. This Court has ruled specifically on this
issue in Rodgers v. State, 1B0 § .W .:l 3d 723-724, holding that
the trial was not fair and that the case should be acquitted
with records expunded, or granted a new trial entirely.
Prayer For Relief
The Appellant prays that the Court of Appeals acknowledges
the Mailbox Rule and the 9.2 Rule, due to the insufficient mail
system at the Wallace Unit, Colorado City, Texas. The Appellant
also prays that the Court of Appeals grants this Petition For
Discretionary Review and that they can set aside the jury's verdict,
for it was so contrary to the overwhelming weight of the evidenpe
that the verdict is clearly wrong and unjust.
Appendix
The Court of Appeals affirmed the judgement, their opiffl^tfl
was delivered and filed on November 26, 2014. The Appellant has
highlighted how the victim's awn conflicting statements impeached
her own testimony.
Respectfully submitted
on February 23, 2015
Jose Godinez Matute
TDCJ #01879418
Wallace Unit
1675 S. Fm 3525
Colorado City, Texas, 79512
//
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00601-CR
Jose Godinez Matute, Appellant
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-l-DC-12-202260, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
Jose Godinez Matute was charged with aggravated sexual assault of a child by
penetrating the child's sexual organ. See Tex. Penal Code § 22.021(a)(1)(B), (a)(2)(B). Atthe time
of the alleged offense, Matute was in his twenties, andthe victim, B.A., was eleven years old. After
a trial, the juryfound Matute guilty and assessed hispunishment at 30years' imprisonment. See
id.
§§ 22.021(e) (providing that offense is first-degree felony), 12.32 (setting outpunishment range for
first-degree felony). Intwo issues onappeal, Matute challenges thelegal sufficiency oftheevidence
supporting his conviction and asserts that the district court erred by allowing a witness to testify
"regarding an interrogation without requiring the State to present the best evidence of that
interrogation." We will affirm the district court's judgment of conviction.
Legal Sufficiency of the Evidence
In his first issue on appeal, Matute challenges the legal sufficiency of the evidence
supporting his conviction. As set out above, Matute was charged with aggravated sexual assault of
a child. Under the Penal Code, an individual commits that offense if he "intentionally or knowingly
... causes the penetration of the anus or sexual organ of a child by any means" and "if the victim is
younger than 14 years of age." Tex. Penal Code § 22.021(a)(l)(B)(i), (a)(2)(B).
Under a legal-sufficiency review, appellate courts view the evidence in the light
most favorable to the verdict and determine whether "any rational trier of fact could have found the
essential elements ofthe crime beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319
(1979). When performing this review, an appellatecourt must bear in mind that it is the factfinder's
dutyto weigh the evidence, to resolve conflicts in the testimony, and to makereasonable inferences
"from basic facts to ultimate facts."
Id. Moreover, appellate courts must "determine whether the
necessary inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict." Hooper v. State,
214 S.W.3d 9,
16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences
were resolved in favor of the conviction and defer to that resolution. Clayton v. State,
235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
During thetrial, B.A., B.A.'s mother, various law-enforcement personnel, andMatute
all testified regarding the alleged offense. Inher testimony, thevictim's mother, J.R., testified that
at the time of the alleged offense, her daughter was eleven years old, was in special-education
classes, and had been diagnosed with various learning disabilities. Regarding the offense, she
explained that she called the police after someone from her neighborhood told her that B.A. had
gotten into "ablack car" with aman. In addition, J.R. related that when she scanned the call history
for her cell phone, she noticed that B.A. had used the phone to call someone, and she stated that she
repeatedly called the number to find out if the person knew where B.A. was and gave the number
to the police. Moreover, she testified that during one ofthe calls, a man answered but that he denied
knowing B.A. Further, J.R. explained that eventually B.A. returned home looking scared and that
the police immediately questioned her about where she had been.
After J.R. finished her testimony, B.A. was called to the stand. In her testimony, B.A.
often answered questions by stating that she did not know or had forgotten the answer, but she
recalled that she called Matute on the phone,1 asked him to pick her up, and got into his black car.
Further, she explained that there was a child's car seat in the back of the car. In addition, she
testified that after she got in the car, Matute drove to various hotels but that he was unable to check
into one because he did not have any identification. Moreover, she mentioned that Matute was
trying to get a hotel room in order to have sex with her and generally described in terms consistent
with her age that sex involves "private parts" touching and touching on the "inside" of her "private
part." Next, she statedthat she had sex with Matuteoutsideof the car behind some apartments, and
she described the positionsof theirbodies,statedthat it felt "weird" whenhis "privatepart" touched
hers, and recalled that he used a condom during the incident. After describing the alleged offense,
B.A. stated that Matute dropped her off at a corner, that she walked the rest of the way home, that
there werepolice officers presentwhen she returned home, and that she directedone of the officers
to where she had had sex with Matute. Later, B.A. testified that she told the officer that Matute was
1In her testimony, B.A. referred to the person that assaulted her as Antonio. However, she
also pointed outMatute andidentified him as theperson thatshe knew as Antonio. Forthatreason,
we will refer to Matute when summarizing her testimony.
not the first person that she had sex with and that she had previously had sex with Matute's cousin
Javier four days before the incident at issue.2
Next, one of the responding officers, Officer Jennifer Szimanski, testified that
J.R. informed her that a man had been calling on the phone for B.A. for over a week. In addition,
Officer Szimanski explained that she questioned B.A. about the incident, and Officer Szimanski
recalled that B.A. was scared and told her that "he came to do sex with me," that Matute picked her
up in a black four-door car, that Matute drove to several hotels but was unable to get a room because
he had no identification, that he took her to a parking lot behind one of the hotels to have sex,
and that Matute wore a condom. Next, Officer Szimanski testified that she asked B.A. if she could
guide her to where the incident occurred, that B.A. directed her to a parking lot, and that there was
a condom wrapper in the parking lot.
After Officer Szimanski concluded her testimony, the sexual-assault nurse examiner
that examinedB.A.,KathleenGann,testifiedregardingthe eventsthatoccurredafterOfficer Szimanski
droveB.A.to the hospital. In her testimony, Gannrecalled what B.A. told her of the events, including
that "the suspect wanted to have sex," that they had sex, that "he touched her butt," and that he
touched her in her "private part... with his thing. It felt awkwardbecause no one ever touched [her]
like that." In addition,althoughGann explainedthat it was initiallydifficultto get B.A. to talk about
what had happened, she also revealedthat B.A. identified a penis on a male diagramand statedthat
2 On cross-examination, B.A. admitted that she did not mention having sex with Javier
when she talked to the prosecutors, but she later explained that she did not remember that when
the prosecutors initially questioned her. Inaddition, Matute questioned B.A. regarding whether she
mentioned Javier when she was examined by the sexual-assault nurse examiner.
the suspect touched her "where she peed from and where she pooped from" with his penis and
that the suspect gave her a hickey on her neck. Regarding the exam that she performed, Gann
testified that B.A. had a hickey on her neck, that B.A. had various tears on her genitals, and that B.A.
had a tear on the perineum, which is the area between the vagina and the anus, that was "oozing
blood." Moreover, Gann explained that the injuries that she observed were consistent with B.A.'s
recollection of the events and that the tear to the perineum was recent and consistent with "blunt
trauma to her genital area earlier that afternoon." When questioned about the possibility that the
injuries could have resulted from a previous sexual encounter occurring four days earlier, Gann
related that given that the areas involved heal quickly, particularly at B.A.'s age, it was unlikely
those injuries would still be present.
In addition to this testimony, various law-enforcement personnel were called to
testify regarding the investigation and regarding testing that was done on the evidence collected.
First, Detective Brent Kelly testified that after obtaining phone records for J.R.'s cell phone, he
learned that the phone number that J.R. called after B.A. went missing was registered to a phone
belonging toMatute. Moreover, Detective Kelly explained that the phone records showed that several
calls were made between Matute's phone and J.R.'s phone in the days leading up to the incident.
In addition, Detective Trent Watts related that Matute had that phone on him when he was
questioned by the police. Further, Detective Peter Bonilla stated that when he was questioning
him, Matute admitted that he owned a black Toyota Corolla, that he knew B.A., and that she got
into his car.
Regarding testing performed on the evidence, Tyler Belknap stated that he tested
the condom wrapper for latent fingerprints. Before discussing the results of the testing, Belknap
5
recalled that when he obtained fingerprints from Matute, "there was some sort of injury to all of [his]
fingers" and that injuries "impair the analysis and comparison process." In light ofthis explanation,
he testified that in the first analysis that he performed, "the known fingerprints were incomplete to
the latent print" obtained from the condom wrapper, meaning that "the area needed for comparison
had some sort of injury to it which didn't allow [him] to either exclude or identify the person in
question." Similarly, during his cross-examination, Belknap testified that another individual in his
department obtained a similarly inconclusive result. However, Belknap also explained that when
he later used other known fingerprints for Matute, he "could immediately see that the quality of the
fingerprints were much better and would probably yield a better comparison." In fact, Belknap
explained that in his second round of testing, he was able to identify Matute's right thumb print on
the condom wrapper.
In addition to testimony regarding fingerprints, various officials testified regarding
testing done on biological samples taken from B.A. and Matute after the alleged offense. First,
Sapana Prajapati testified that swabs takenof B.A.'s external genitals and analregionas wellas her
shorts and underwear had blood in them. Further, she explained that she tested a swab taken from
B.A.'s neck and determined that Matute could not "be excluded as a contributor to" that sample. In
fact, she stated that "[t]he probability of selecting an unrelated person at random that could be a
contributor to this profile is approximately ... 1 in 27.49 million for Hispanics." Next, Lindsey
Ayers testified that she tested pieces of hair collected from B.A.'s underwear. Specifically, she
stated that the hair appeared to be pubic hair and related that although the test was "a limited
comparison," it was heropinion that the hair recovered from the underwear could have come from
Matute because the hair was "microscopically similar" to pubic hair later retrieved from Matute.
Then, Emma Becker explained that she performed DNA testing on the pubic hair recovered from
B.A.'s underwear and revealed that the first test that she performed did not identify Matute as a
contributor but that more sensitive testing that she performed later and that directly looks for Y
chromosomes revealed that the recovered hair "is consistent with the ... profile of Matute and that
Matute could not be excluded as the contributor of the DNA.
Finally, after the State rested, Matute elected to testify. In his testimony, Matute
acknowledged that he knew B.A. and that he met her on the day of the alleged assault at a
"washateria" because her boyfriend had asked him to give her a ride to a party. Moreover, he
explained that B.A. kept tryingto get close to him and admittedthat he kissed B.A. on her cheek at
her request, but he insisted that nothing else happened. Further, Matute called B.A. a liar and said
that "[s]he likes to go with different men." On cross-examination, he admitted that at the time of
the offense, he drove a black car that had car seats in the back for his young children.
Inlightof alloftheevidence summarized above, including thetestimony of B.A. and
Matute, as well as the reasonable inferencesthat the factfinder could have made from that evidence
and given that the standard of review for legal-sufficiency challenges obligates appellate courts to
defer to the factfinder's resolution of conflicts in the testimony and to review the evidence in the
light most favorable to the verdict, see
Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778;
Hooper, 214 S.W.3d at 16-17; we conclude that the evidence was legally sufficient to support the
district court's judgment of conviction. Accordingly, we overrule Matute's first issue on appeal.
Best Evidence
In his second issue on appeal, Matute contends that the district "court erred in allowing
testimonyregardingan interrogationwithout requiringthe State to present the best evidence for that
interrogation." See Tex. R. Evid. 1002. Specifically,Matute refers to portions of the testimony from
Detective Bonilla in which he described his questioning of Matute and insists that the video of the
interrogation should have been admitted instead. Moreover, Matute insists that the district court's
ruling was improper because if the video of the interrogation had been admitted, "the jury could
have seen [Matute] repeatedlydenying that he committed any crime, despite Bonilla's tactics as an
investigator." Matute argues that he was harmed by the district court's ruling for the same reason.
We review a trial court's ruling on the admission of evidence under an abuse-of-
discretion standard of review. See Davis v. State,
329 S.W.3d 798, 803 (Tex. Crim. App. 2010).
Underthat standard, a trial court's rulingwill onlybe deemedan abuseof discretion if it is so clearly
wrong as to lie outside the zone of reasonable disagreement, Lopez v. State,
86 S.W.3d 228, 230
(Tex. Crim. App. 2002), orisarbitrary orunreasonable, State v. Mechler, 153 S.W.3d 435,439 (Tex.
Crim. App. 2005). Moreover, the trial court's ruling will be upheld provided that the trial court's
decision "is reasonably supported bythe record and is correct under any theory of law applicable to
the case." Carrasco v. State,
154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
When Matute argued during thetrialthatthebest evidence of whatDetective Bonilla
said and observed was the video of the interrogation, the district court explained that it was
unnecessary to admit the video because Detective Bonilla was "here testifying." The court ofcriminal
appeals has confronted a similar issue before. See Burdine v. State,
719 S.W.2d 309 (Tex. Crim.
App. 1986), superseded in part on other grounds by rule change as stated in Barnes v. State,
876 S.W.2d 316, 325-26 (Tex. Crim. App. 1994) (explaining that Rules of Evidence 401, 402, and
403 were modified since holding in Burdine). In Burdine, Burdine argued that "his oral statement
made to police officers should not have been admitted in evidence, because the statement was
offered in the form of the officers' testimony rather than the tape recording made at the time the
statement was given."
Id. at 318. Although the court decided that the best-evidence rule in effect
at the time did not apply to electronic recordings, it also commented that even if it did, Burdine's
claim would not be sustained because the issue was "the contents of the conversation on the
recording, and not the recording itself. Since [the police officer] participated in the conversation,
his testimony describing theinterrogation wassufficient forbestevidence purposes."
Id. at 318n.5.
More recently, our sister court of appeals issued an opinion agreeing with the
reasoning in Burdine. See Cox v. State, No. 05-11-00687-CR, 2012 Tex. App. LEXIS 5380 (Tex.
App.—Dallas July 9, 2012, pet. dism'd) (notdesignated for publication). In Cox, Cox argued that
the trial court erred by allowing a witness to testify regarding events that he "observed on the
closed-circuit television monitor when... the best evidence was a video recording ofthe events that
hadbeengenerated by the closed-circuit television monitoring system."
Id. at *3-4. However, the
court determined that the witness:
testified concerning what he observed on the closed-circuit television monitor as it
occurred.. . . That events observed by [the witness] on the closed-circuit television
monitor couldhave been copied to a compact disc and preserved does not alter the
fact that .[the witness] testified concerning what he observed in real time. [The
witness]'s testimony regarding his observations of the events as they occurred as
depicted on the closed-circuit television monitor is not testimony regarding, or
dependent upon, a videotape recording.
Id. at*9-10.
In addition, federal courts interpreting the federal version of the best-evidence rule
have reached similar results. See Fed. R. Evid. 1002 (requiring original recording "in order to prove
its content unless these rules or a federal statute provides otherwise"); see, e.g., United States v.
Bennett,
363 F.3d 947, 953 (9th Cir. 2004) (concluding that witness's testimony when he did not
observe alleged actions violated best-evidence rule and noting that rule applies when witness seeks to
testify about contents ofrecording, particularly where witness was not privy to events on recording);
United States v. Workinger,
90 F.3d 1409, 1415 (9th Cir. 1996) (explaining that "a tape recording
cannot be said to be the best evidence of a conversation when a party seeks to call a participant in or
observer ofthe conversation to testify to it. In that instance, the best evidence rule has no application
at all"); United States v. Fagan,
821 F.2d 1002, 1009 n.l (5th Cir. 1987) (characterizing as
"completely without merit" best-evidence argument that sheriff should not testify regarding his
recollection of interview because interview was taped and stating that rule was inapplicable
where prosecution was trying to prove contents of conversation rather than contents of recording);
United States v. Gonzales-Benitez,
537 F.2d 1051, 1053-54 (9th Cir. 1976) (noting that argument
that tape recording of conversation should have been introduced instead of allowing participant to
testify was puzzling and misconstrued purpose of best-evidence rule and explaining that although
tape recordingwould have been admissible as evidence of conversation, "testimony by participants
was equally admissible and was sufficient to establish what was said").
In light of this authority, we cannot conclude that the district court abused its
discretion byoverruling Matute's best-evidence objection during trial orbyallowing Detective Bonilla
10
to testify without requiring the State to introduce the video of the interrogation. Accordingly, we
overrule Matute's second issue on appeal.
CONCLUSION
Having overruled Matute's two issues on appeal, we affirm the district court's
judgment of conviction.
David Puryear, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed
Filed: November 26, 2014
Do Not Publish
11
"
, j
rj -» £ -1 LJ ,
O CT\ CB o o
M -si H1 n cd
D LT. (-> C_J CD
r- H Da
m
o) cn n =tt= tn
en
D. • CD o o
q -* o.
r-
-n cr CD "-1-
n 3 3 -j r
H- H- VD CD
3=
c+ OJ e+ .p- N
M —*
< LP
- ro CD 3
Ul CD
—t t+
CD c
X c+
D) CD
CD
-
^]
VD
Ul
sM
-.1 -
-J
l\) s
CJ|
o*
»:
m
o
Q
ut
ja -a —I
C • CD
cd a x
rt- • tn
H- CD
3 CD
-an
x a
-i c
CD -» i
x ro c+
D3 DO
CD a d
CD -«I