Jackie Lynn Long v. the State of Texas

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00128-CR
__________________
JACKIE LYNN LONG, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________
On Appeal from the County Court
Jasper County, Texas
Trial Cause No. JC34639
__________________________________________________________________
MEMORANDUM OPINION
After pleading not guilty, Jackie Lynn Long was convicted by a jury of the
offense of burglary of a vehicle. The jury assessed punishment at one year in county
jail, assessed a $2000 fine, and assessed restitution to the victim in the amount of
$850. Long appealed. In two appellate issues, Long argues the trial court erred in
allowing an unqualified attorney to act as an assistant prosecuting attorney and the
trial court abused its discretion in admitting certain evidence.
1
Evidence at Trial
Brandon Midkiff testified that on April 14, 2017, he went fishing with his
father in Jasper County. According to Brandon, he rode separately from his father to
the boat ramp and met him there. Brandon testified that when they returned to the
boat ramp after fishing, his father discovered items missing from inside his father’s
toolbox in his father’s truck bed. They notified the Jasper County Sheriff’s Office,
and while waiting for law enforcement to arrive, Brandon remembered that he had a
dash camera recently installed on his own truck that recorded on motion or impact
when parked and that the dash camera might have captured footage of the theft.
According to Brandon, as a business owner, he always traveled with a laptop, and
he retrieved his laptop from his truck. He testified he downloaded the multiple
images from the dash camera to his laptop, showed the images to his father,
“narrowed down” the videos that pertained to his father’s truck from all the videos
picking up any motion, and provided to Deputy Cal Morgan a thumb drive of about
a minute and thirty-nine seconds of the “narrowed down” videos depicting a man in
between Brandon’s and his father’s trucks. According to Brandon, no one else “even
remotely walked near our vehicles[]” and the man in the video was in a truck with
no boat, was driving by multiple times and “looking and reversing” and the vehicle
looked suspicious going against the flow of traffic for the boat ramp. The thumb
drive was admitted into evidence as Exhibit No. 1, and footage from the thumb drive
2
was played for the jury. A still image of a man from the video played for the jury
was admitted as Exhibit No. 3.
Rodney Midkiff testified that he went fishing with his son Brandon, and that
when they returned to the boat ramp, Rodney discovered items from his truck
toolbox scattered in the bed of his truck and other items from the toolbox missing.
According to Rodney, he worked in the air-conditioning business and the items
missing included a significant number of tools, air-conditioning gauges, and copper
fittings, and an inventory sheet listing of the stolen items was admitted into evidence.
He testified that Brandon pulled a card out of his dash camera and put it on his
computer at the scene and they watched the footage, and at trial Rodney identified
his truck in the footage played for the jury.
Amy Midkiff, Rodney’s daughter and Brandon’s sister, testified that her
brother showed her the footage from that day of the man that committed the theft
and the suspect’s truck, and that she “had a screen shot in [her] phone from the
video[]” of the truck. Amy testified that on May 25, 2017, while driving from
Kirbyville to Silsbee, she observed a truck pull out in front of her and she
“recognized the truck immediately[]” as the man’s truck in the footage of the theft
and that when she passed the truck, she recognized the man in the truck as the man
in the video that stole her father’s belongings. Amy testified that she identified the
truck because it had the same distinctive stickers in the same location, the back
3
window busted out, and it was the same make and model as the truck in the video
footage. According to Amy, she called the Jasper County Sheriff’s Office to notify
them that she located the truck and reported the license plate.
Deputy Cal Morgan with the Jasper County Sheriff’s Department testified that
he met with Brandon and Rodney at the boat ramp and then later retrieved the jump
drive of Brandon’s truck dash camera footage. According to Deputy Morgan, he
could see the build of the person in the video and the truck with stickers on the
windows, and the license plate numbers provided by a female that identified the
truck on the highway helped him identify Long as the perpetrator. Long failed to
show up to meet Deputy Morgan to review the video footage together as scheduled,
and Deputy Morgan obtained a warrant.
Deputy Kevin Holloway with the Jasper County Sheriff’s Office testified that
he had been on the “look-out for the truck[]” and observed a truck that matched the
“very distinctive[]” description based on the year, make and model, the stickers on
the back, and the back driver’s side window busted out. According to Deputy
Holloway, he initiated contact with the driver, identified Long as the driver by his
driver’s license and as the subject of the warrant, placed Long in custody, and
transported Long to the jail.
4
The Assistant Prosecuting Attorney’s Participation in the Trial
In his first issue, Long argues the trial court erred in allowing an unqualified
attorney to act as an assistant prosecuting attorney (“APA”). Section 41.103(a) of
the Texas Government Code provides that “[a]n assistant prosecuting attorney must
be licensed to practice law in this state and shall take the constitutional oath of
office.” Tex. Gov’t Code Ann. § 41.103(a). Section 81.102 of the Texas Government
Code provides, in pertinent part:
(a) Except as provided by Subsection (b), a person may not practice law
in this state unless the person is a member of the state bar.
(b) The supreme court may promulgate rules prescribing the procedure
for limited practice of law by . . . unlicensed graduate students who are
attending or have attended a law school approved by the supreme court.
See id. § 81.102. The Rules Governing the Supervised Practice of Law by Qualified
Law Students and Qualified Unlicensed Law School Graduates in Texas (hereinafter
“the Rules”) provide as follows, in relevant part:
Rule I. Purpose
These rules are promulgated pursuant to Section 81.102(b) of the Texas
Government Code for the purpose of governing the participation of
qualified law students and qualified unlicensed law school graduates in
the limited practice of law in Texas. These rules are promulgated to
provide competent legal services for all persons and to furnish practical
training to qualified law students and to qualified unlicensed law school
graduates.
5
Rule II. Eligibility; Qualified Law Student and Qualified
Unlicensed Law School Graduate Defined
A. To be eligible to obtain a supervised practice card and perform the
activities in Rule VI, a person must be:
(1) a qualified law student; or
(2) a qualified unlicensed law school graduate.
....
C. A qualified unlicensed law school graduate is a graduate:
(1) of one of the following programs at a law school or provisionally
accredited by the American Bar Association:
(a) a juris doctorate program; or
(b) an LL.M. program that satisfies the requirements of Rule 13
of the Rules Governing Admission to the Bar of Texas; and
(2) who has:
(a) not yet taken a bar examination;
(b) taken only one bar examination and is awaiting results of the
examination; or
(c) taken only one bar examination and not achieved a passing
score;
(3) who has applied for admission to the Texas Bar, whether based
on a Texas Bar Examination score or a transferred Uniform Bar
Examination score, and paid all relevant fees under the Rules
Governing Admission to the Bar of Texas; and
(4) who is certified by the dean of his or her law school or by the
dean’s designee to:
(a) have met the graduation requirement in Rule II(C)(1); and
(b) possess the present good moral character and fitness required
to practice law.
Rule III. Application; Issuance of Supervised Practice Card;
Duty to Update Contact Information
A. A qualified law student or a qualified unlicensed law school graduate
must submit to the State Bar of Texas an application for supervised
practice on forms prescribed by the State Bar of Texas and a fee in an
amount set by the State Bar of Texas. The application must include:
(1) A certification in writing by the qualified law student or the
qualified unlicensed law school graduate that he or she:
6
(a) has read and is familiar with these rules, the Texas
Disciplinary Rules of Professional Conduct, the Texas Rules of
Disciplinary Procedure, and the Texas Lawyer’s Creed; and
(b) agrees to be subject to and abide by these rules, the Texas
Disciplinary Rules of Professional Conduct, the Texas Rules of
Disciplinary Procedure, and the Texas Lawyer’s Creed;
(2) a certification by a dean of the applicant’s law school attesting
to the requirements in Rules II(B)(2) or II(C)(4); and
(3) a certification from the supervising attorney attesting that the
supervising attorney meets all requirements in Rule VII and will
directly supervise the applicant.
B. If the State Bar of Texas determines that a qualified law student or a
qualified unlicensed law school graduate has satisfied the requirements
of Rules II and III(a), the State Bar of Texas must issue a supervised
practice card to the qualified law student or the qualified unlicensed law
school graduate.
....
Rule VI. Permitted Activities
A. Subject to all applicable rules and statutes, . . . a qualified unlicensed
law school graduate who has a currently effective supervised
practice card may:
(1) subject to the approval of the presiding judge . . . appear in any
trial . . . on behalf of a client provided that the . . . qualified
unlicensed law school graduate:
(a) has obtained the client’s consent;
(b) notifies or has previously notified the court . . . of the client’s
consent; and
(c) is accompanied, whether in person or by remote means, by
the supervising attorney[.]
....
Rule VII. Supervising Attorney
A. Except as otherwise provided in Rule VII(B)[1], an attorney who is
supervising a qualified law student or quailed unlicensed law school
graduate must:
1
Rule VII(B) is not pertinent to the case or our analysis.
7
(1) be an active member of the State Bar of Texas and in good
standing who has practiced law in Texas for at least three years:
(2) assume professional responsibility for the direct supervision of
and for any activity performed by the qualified law student or
qualified unlicensed law school graduate under these rules;
(3) maintain professional malpractice and errors and omissions
insurance covering the supervised qualified law student or qualified
unlicensed law school graduate, unless the attorney is supervising
the student or the graduate in the attorney’s official capacity as a
public prosecutor or assistant public prosecutor or is an attorney
otherwise protected by governmental immunity;
(4) supervise not more than four qualified law students and qualified
unlicensed law school graduates simultaneously; and
(5) immediately notify the State Bar of Texas Membership
Department if the lawyer no long meets the requirement of these
rules or if the lawyer’s supervision is ending for any reason.
....
Rules Governing the Supervised Practice of Law by Qualified Law Students and
Qualified Unlicensed Law School Graduates in Texas, Rules I, II, III, VI, VII
(including amendments received through Feb.1, 2022).
According to Long, the State allowed a law student who had taken the bar
exam, but had not received the results or her law license, to prosecute Long’s case
in violation of section 41.103 of the Texas Government Code. Long argues that the
use of the word “limited” before the word “practice” in section 81.102 of the Texas
Government Code has meaning, but he does not offer any interpretation of the
meaning.
The State argues that the Rules Governing the Supervised Practice of Law by
Qualified Law Students and Qualified Unlicensed Law School Graduates in Texas
8
are intended to limit the practice of law by unlicensed law school graduates, but the
rules allow a qualified unlicensed law school graduate properly supervised during
the trial to practice under supervision, and the APA complied with those rules and
had the ability to appear in the trial representing the State.
During trial on March 28, 2022, after the venire members were seated and
before voir dire began, defense counsel raised a complaint and the parties had the
following discussion with the trial court on the record:
[Defense counsel]: Your Honor, may we approach? It’s my
understanding that 41.103 of the Government Code says the assistant
prosecuting attorney must be licensed in the State of Texas. I checked
the State Bar website this morning, and it does not show that [the APA]
is a licensed attorney in the State of Texas.
[APA]: I have supplied my license, my State Bar [of] Texas license to
the judge’s office this morning; and I also have a copy of it, if you
would like to see it?
[Defense counsel]: We do. You’ve already been licensed?
[District Attorney]: She has a license to work under my license, and
she’s allowed to participate in trials and do anything a lawyer can do
under my supervision.
[Defense counsel]: It’s my understanding once you take the bar exam,
a student bar card is no longer valid and you must have something from
the state showing authority to practice.
[APA]: Okay, Your Honor, if you would allow me to go get my license
and it will clarify the dates. I’ll be right back.
(Brief recess)
[APA]: Just so I can clarify, briefly, this is my State of Texas license
that was produced to me to practice January 14th, 2022, valid through
9
2/28/23. I did sit for the Texas Bar on February 22nd and 23rd, which
has already been approved for my character and fitness as being able to
practice today.
[Defense counsel]: But she does not have her bar results, Your Honor,
and she’s not a licensed attorney in the State of Texas; and to be a
prosecuting attorney, you must be licensed.
[APA]: While [defense counsel] does have an on view [sic] that I have
not passed the State Bar of Texas and I have sat for it, I’m not here
today trying to practice as - - on my own. I’m here today trying to
practice under supervised practice with my supervisor here with me
today.
[Defense counsel]: But the Code - -
[District Attorney]: She’s clearly entitled to.
[Defense counsel]: But the Code is clear, too, and it says she’s got to
be a license [sic] attorney.
[APA]: Which I am a licensed attorney under the State Bar of Texas.
My license number is right there the 24127546.
[Defense counsel]: I ran it this morning and I ran it last night. When
you punch in that bar card, it pulls up nothing. It does not show that
she’s licensed in the State of Texas to practice.
[APA]: So, did I fabricate this material?
[Defense counsel]: I’m just saying what pulled up.
THE COURT: Do you have any problem with the - -
[District Attorney]: I plan to be here the whole time - -
THE COURT: Do you have any objection?
[Defense counsel]: Yes, Your Honor, I do.
10
THE COURT: Prosecuting the case with her assistance - -
[Defense counsel]: The prosecuting, it’s no problem; but her doing voir
dire, we object, or any part of this trial.
[APA]: Based on the fact that I’m not licensed although I have a license
number?
[Defense counsel]: She is not shown to be licensed to practice in the
State of Texas.
[APA]: [Defense counsel], can I ask you a question? Do you believe
that I fabricated this material and that I would jeopardize my law
license?
[Defense counsel]: I’m not here to answer questions. I’m just here to
say that you need a license - -
THE COURT: We’ll answer this outside the presence of the jury. We’re
going to go ahead and recess the jury for another ten minutes while we
work through a couple of administrative matters. . . .
(The venire panel exits the courtroom.)
[Defense counsel]: The statute’s pretty clear. You’ve got to be licensed
to practice; and as I’ve stated earlier, when I pulled her up on the
website it does not show her as eligible to practice law in the State of
Texas.
[APA]: However, I do have authorization here from the State of Texas
showing I am licensed and who authorized me to practice law. I also
have the congratulations letter right hear saying, “Your State Bar of
Texas supervised practice card certification notice is attached. As a
qualified law student or law school graduate, this card affords you the
privileges provided in general discovery and supervised practice of
law.” I’m able to represent a client. I’m able to appear in any trial
hearing, arbitration or other proceeding; negotiate and prepare [] legal
instruments, such as contracts or wills; file papers on behalf of a client
with the Court; provide legal services to a client. The only caveat is that
. . . the attorney who supervises me must be present, which [the District
11
Attorney] is here. There - - I recognize [defense counsel]’s argument
that I’m not listed on the State Bar of Texas as an attorney on my own.
However, I’m not making that argument. The argument that I’m
making today is that I am licensed to practice with my supervisor here
which she is also here. I have a state bar - - state bar number. This has
been supplied by the State Bar of Texas.
THE COURT: And you plan to be here the whole time - -
[District Attorney]: I plan to be here the whole time.
THE COURT: All right. As long as our district attorney - - as long as
our district attorney’s present in the courtroom I’ll allow this to
continue.
[Defense counsel[2]: We still object, Your Honor.
THE COURT: Overruled.
[APA]: Your Honor, is there any way that we would be able to submit
my State Bar of Texas license as an exhibit for the record if there’s any
instances or issues with this after trial?
THE COURT: Any objection?
[Defense counsel]: None except that’s not a certified copy. We object
to that.
THE COURT: All right. . . . I’ll allow that to be entered. Can you get a
certified copy of it?
[APA]: I can, yes, sir. Not today, but I can provide one at a later date
--
2
The court reporter’s transcript states the APA made this objection, but
defense counsel argues on appeal that the defense attorney made the objection, and
the trial court overruled the defense attorney’s objection. The State does not contend
otherwise, and when read in context it appears the court reporter mistakenly reflects
it was the APA speaking.
12
THE COURT: I’ll allow that one until you can get a certified copy for
the court reporter.
A copy of a notice from the Membership Department of the State Bar of Texas was
included as part of the exhibit volume of the reporter’s record. The type-written
notice on State Bar of Texas letterhead listed the name, bar number, and law school
for the APA that participated in this case and stated that “[t]his notice is to certify”
that the individual “is enrolled in the State Bar of Texas as an Associate Member
Effective: 01/14/22 thru 02/28/23[,]” that “[a]n associate member may not practice
law unless under the supervision of a licensed attorney[,]” and the name and bar
number for the supervising attorney listed on the notice matched the supervising
prosecuting attorney that supervised the APA during the trial. The notice also stated
the following:
Associate Members of the State Bar have complied with Tex. Gov’t
Code 81.102(b), (2) & (3), “Rules Governing the Supervised Practice
of Law by Qualified Law Students and Qualified Unlicensed Law
School Graduates in Texas” promulgated thereunder.
In the trial court and on appeal, Long argues that the Texas Supreme Court’s
authorization in section 81.102(b) of the Government Code for the limited practice
of law by “unlicensed graduate students who are attending or have attended a law
school approved by the supreme court[]” does not apply to assistant prosecuting
attorney’s because section 41.103(a) of the Government Code requires that “[a]n
assistant prosecuting attorney must be licensed to practice law in this state and shall
13
take the constitutional oath of office.” Long cites no authority, nor are we aware of
any, that supports his argument. Rule VI(A)(1) of the Rules provides that qualified
law students or qualified unlicensed law school graduates (as defined by the Rules)
can, among other things, participate in trial if they have a currently effective
supervised practice card; are accompanied by a supervising attorney; and have
notified the court, obtained approval from the presiding judge, and obtained the
client’s consent, and there is no exception prohibiting those qualified law students
or qualified unlicensed law school graduates from participating as assistant
prosecuting attorneys. See Rules Governing the Supervised Practice of Law by
Qualified Law Students and Qualified Unlicensed Law School Graduates in Texas
Rule VI(A)(1).3
The supervising attorney listed for the APA stated to the court that she would
be supervising the APA for the duration of the trial and nothing in the record shows
otherwise. Furthermore, Long does not argue that the APA failed to meet the
definition of a “qualified unlicensed law school graduate” under the Rules, or that
the supervising attorney was not present, or that the APA’s activities were outside
3
Rule VII also provides that the supervising attorney does not have to
maintain malpractice insurance covering the supervised qualified law student or
qualified unlicensed law school graduate if the supervising attorney is supervising
the student or graduate in the attorney’s official capacity as a public prosecutor or
assistant public prosecutor. See Rules Governing the Supervised Practice of Law by
Qualified Law Students and Qualified Unlicensed Law School Graduates in Texas
Rule VII(A)(3).
14
the scope of the permitted activities enumerated in the Rules, or that the APA did
not give the required notice or obtain the necessary consent or approval to participate
in the trial. On this record we cannot say the trial court erred in determining that the
APA was a qualified unlicensed law school graduate under the Rules and she was
allowed to participate in the trial while supervised by her supervising attorney. See
generally Applin v. State, 705 S.W.2d 411, 412-13 (Tex. App.—Fort Worth 1986,
no pet.) (under prior version of the Rules, an unlicensed law school graduate
awaiting bar results acted within the scope of the Rules when, in a criminal case and
while in the presence of his supervising attorney, he spoke to the appellant about the
status of the case, assisted with trial preparation and strategy, and conducted the
cross-examination of the State’s two main witnesses). We overrule issue one.
Exhibit Nos. 1 and 3
In his second issue, Long argues the trial court erred in admitting Exhibit No.
3, which Long describes as “an enhanced photograph” into evidence which Long
asserts was not provided to the defense prior to trial in violation of Brady v.
Maryland, the Texas Michael Morton Act, and article 39.14 of the Texas Code of
Criminal Procedure, and that the trial court erred in denying Long’s motion for new
trial on this same issue. While Long’s stated issue only mentions Exhibit No. 3, his
argument also alleges error in the admission of Exhibit No. 1.
15
We review a trial court’s admission of evidence for abuse of discretion. See
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court
abuses its discretion when its decision lies outside the zone of reasonable
disagreement. Id. We will not disturb a trial court’s evidentiary ruling if it is correct
on any theory of law applicable to the case. See De La Paz v. State, 279 S.W.3d 336,
343-44 (Tex. Crim. App. 2009). Where the alleged error is not constitutional, we
will reverse the trial court’s judgment only if the error affected the appellant’s
substantial rights. See Tex. R. App. P. 44.2(b). “A substantial right is affected when
the error had a substantial and injurious effect or influence in determining the jury’s
verdict.” See Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014).
Substantial rights are not affected by the erroneous admission of evidence if, after
examining the record as a whole, the appellate court has fair assurance that the error
did not influence the jury or had only a slight effect. See Motilla v. State, 78 S.W.3d
352, 355 (Tex. Crim. App. 2002).
As to Exhibit No. 1, Long argues that he objected to the video under Texas
Rules of Evidence 1002 and 1003 and that “[t]he video offered by the State was not
the original recording of the incident as the operator had selected certain short clips
from the original video and made a new recording of these clips and redacted all
other video.” According to Long, the operator had edited the recording to select what
16
he wanted to introduce as evidence and denied Long access to the rest of the material
on the video.
Rule 1002 of the Texas Rules of Evidence provides that “[a]n original writing,
recording, or photograph is required in order to prove its content unless these rules
or other law provides otherwise.” Tex. R. Evid. 1002. Rule 1003 provides the
following exception to this requirement: “A duplicate is admissible to the same
extent as an original unless a question is raised about the original’s authenticity or
the circumstances make it unfair to admit the duplicate.” Tex. R. Evid. 1003
(“Admissibility of Duplicates”). The authentication requirement for admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims. Tex. R. Evid. 901(a).
At trial, Brandon testified that he recognized Exhibit No. 1 as the thumb drive
that he made within a couple of days of the incident and provided to Deputy Cal
Morgan. According to Brandon, the recording was prepared on a device capable of
making an accurate recording of visual and audio information and he, as the operator,
was competent to operate the device. Brandon testified that the recorded clips on the
video had not been altered but simply moved to the thumb drive. Long objected to
the admission of Exhibit No. 1 because “[t]he thumb drive does not comport [with]
rules of evidence 1002 or 1003 of the Texas Rules of Evidence[]” and challenged
the reliability of the evidence because it was not an original recording. Long argued
17
that the video had been altered because “[t]here’s no way they can say that this thing
has not been altered when we’ve got a five-hour time period and we’re only looking
at a minute and 39 seconds of video from that period.” The trial court allowed Long
to voir dire Brandon outside the jury’s presence regarding the exhibit, and Brandon
testified that the dash camera operated similarly to a game camera and works off
motion, that the device records in incremental sections as separate files, he did not
edit any individual recordings, he moved the relevant files to the thumb drive and
labeled the file name to a description of the video clip, but the video files were not
altered in any way, and the video clips on the thumb drive were the original video
from that day and “complete and whole.” The trial court made the following ruling
outside the jury’s presence:
As the Court understands, that file is a single unaltered file. The Court
does take notice that the name was changed to designate it for that
alleged episode. I’m going to allow it as evidence and all this can be
handle[d] in cross and go ahead and proceed.
Brandon testified that he did not alter any of the actual video clips and that the thumb
drive included only videos relevant to the case. On this record, we cannot say the
trial court abused its discretion in concluding that Brandon’s testimony was
sufficient to meet the requirement that the evidence be authenticated. See Tex. R.
Evid. 901. Also, Long’s challenge that the thumb drive is not a complete recording
of what was recorded that day goes to the weight of the evidence and not its
admissibility. See Robinson v. State, 739 S.W.2d 795, 802 (Tex. Crim. App. 1987)
18
(complaint that evidence not “accurate” goes to weight not admissibility). We
conclude the trial court did not abuse its discretion in overruling Long’s objection as
to Exhibit No. 1.
As to Exhibit No. 3, Long argues that the State offered the exhibit as a still
photograph allegedly of Long from the video that the State asserted Long had access
to because it was from the video that was given to Long and published to the jury as
Exhibit No. 1. According to Long, the State maintained that it provided a black and
white copy of the still photograph to Long and kept a color copy for the State’s file.
Long argues on appeal that the color copy admitted as Exhibit No. 3 had been
enhanced and, had he had access to that color copy, it would have affected his
preparation and strategy for trial and would have influenced his decision whether to
accept a plea and not proceed to trial.
At trial, when the State offered Exhibit No. 3 into evidence as “a still shot
from the video the jury watched[,]” Long lodged the following objection:
[Defense counsel]: Your, Honor, I feel like this photo’s been doctored
because it surely - - may we approach?
THE COURT: Yes, sir.
[Defense counsel]: This is what they’re tendering. That’s what they
gave me. Somebody has worked on that, there’s been a lot of clarity.
THE COURT: They gave you a black and white copy?
19
[Defense counsel]: Yes, sir. That’s what I got, but I mean, you can tell
there is - - this is real fuzzy and grainy and this one’s been cleaned up
a lot. Somebody’s been messing with that photo.
[APA]: Your Honor, I would tender that the difference is the fact this
is a black and white photo and this is a color photo and his face is
reflecting the shadow of a black and white photo and this is reflecting
his real-life color.
[Defense counsel]: Black and white is always a sharper image color any
day.
[APA]: That’s also an opinion.
[Defense counsel]: Well, so is yours on that.
THE COURT: Okay. You didn’t receive a color photo - -
[Defense counsel]: No, sir. I got the video, but I’m having - - that photo
they’re trying to introduce has been doctored.
[APA]: This photo is a still shot from the video that the jury just
watched and has not been altered in any way, and you were provided
this when you were provided the video that was published to the jury.
The only difference is that I still-framed on it and then you were
provided the black and white copy and my office maintained the color
copy.
THE COURT: All right. I’ll allow it.
[APA]: So, State’s Exhibit No. 3 will be admitted?
THE COURT: Yes.
On appeal, Long argues that Exhibit No. 3 had not been provided to the
defense prior to trial in violation of Brady v. Maryland, the Texas Michael Morton
Act, and article 39.14 of the Texas Code of Criminal Procedure. To preserve an issue
20
for appellate review, the defendant must make a timely request, objection, or motion
stating specific grounds for the ruling he desires the trial judge to make and obtain a
ruling on the objection. Tex. R. App. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346,
349 (Tex. Crim. App. 2002) (citing Broxton v. State, 909 S.W.2d 912, 918 (Tex.
Crim. App. 1995)). Even assuming without deciding that Long’s comments at trial
regarding Exhibit No. 3 amounted to an objection, his “objection” at trial varies
substantially from his argument on appeal, he simply did not make a Brady violation
challenge at trial, and this complaint was not preserved. See Borne v. State, 593
S.W.3d 404, 412 (Tex. App.—Beaumont 2020, no pet.) (citing Thomas v. State, 723
S.W.2d 696, 700 (Tex. Crim. App. 1986); Coffey v. State, 796 S.W.2d 175, 179 (Tex.
Crim. App. 1990); Ford v. State, 488 S.W.3d 350, 351 (Tex. App.—Beaumont 2016,
no pet.); Shelling v. State, 52 S.W.3d 213, 218 (Tex. App.—Houston [1st Dist.]
2001, pet. ref’d)). We overrule issue two.
We note that the section of the judgment entitled “Plea to the Offense” states
“GUILTY[,]” but the reporter’s record reflects that Long pleaded “not guilty.” This
Court has the authority to reform the trial court’s judgment to correct clerical errors.
See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.
1993). We therefore reform the trial court’s judgment to delete the plea of
“GUILTY” and to substitute “NOT GUILTY.”
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Having overruled Appellant’s issues, we affirm the trial court’s judgment as
reformed.
AFFIRMED AS REFORMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on May 17, 2023
Opinion Delivered July 26, 2023
Do Not Publish
Before Horton, Johnson and Wright, JJ.
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