Opinion by Justice BAILEY C. MOSELEY.
Jamel McLelland Fowler was convicted of theft of a Kawasaki mule all terrain vehicle (ATV) valued at $1,500.00 or more, but less than $20,000.00.
I. Trial Court Proceedings
In 2014, Fowler was charged by three separate indictments with three separate crimes. In the indictment which led to the conviction on appeal in this matter, Fowler was accused of stealing the ATV from Paul Blassingame. The other two indictments alleged burglaries of buildings. In one of the other charges, Fowler was accused of breaking into a building owned by William Martin and stealing various items (Burglary Case No. 1);
II. The Evidence
The facts of the three alleged offenses are intertwined and will have some bearing on the issues Fowler presents in this appeal. As previously stated, this appeal is of Fowler's conviction of the theft of the ATV. Blassingame testified that the ATV had been located on property he owned in Hunt County, which he visited often. In November 2014, he went to that property, where he discovered that the ATV was missing, a fact that he duly reported to the Hunt County Sheriff's Office as a theft. Law enforcement officers in Royse City of neighboring Rockwall County found the ATV on December 6, 2014, while investigating a burglary at a concrete supply business. The ATV was identified by its vehicle identification number and returned to Blassingame.
The ATV was found hidden in a wooded area beyond a field on property owned by Lattimore Materials,
In addition to those circumstances, in the weeks leading up to the December discovery of Blassingame's ATV, officers had found a blue Nissan Xterra vehicle in the area under suspicious circumstances. On November 3, 2014, at about 1:45 a.m., Royse City Police Sergeant Ryan Curtis and Rockwall County Deputy Brad Dick found the truck parked on a dirt road behind some industrial businesses in a poorly lit area.
At about 6:00 a.m. that same day, Royse City Police Officers William Potter and Tim West observed the same blue Xterra in another part of Royse City parked on the side of a local county road. As previously, the vehicle was occupied only by Cox, and when she was questioned by the policemen, she made reference once again to a male companion. Later that morning, Potter and West again encountered the Xterra, this time containing both Cox and Fowler. Between these two encounters, Potter had responded to a call regarding an alleged theft at the Four Brothers mower and tractor dealership. The dealership representatives called Potter's attention to three mowers, each of which had their gasoline caps removed and none of which held any gasoline in their tanks.
After that, Potter returned to the Xterra and questioned Fowler about involvement in any theft of gasoline, which Fowler denied. From our reading of the record, Potter took no further action with respect to Fowler after that point.
Testimony about the burglaries at Lattimore Materials revealed that a part of the method of operation of the burglars was to sever cables or heavy wires and remove them from the site. In addition, the burglars had cut padlocks on the gates of the premises more than once. While investigating one of the burglaries, Torrez found three sets of bolt cutters near some of the cut cables, and he suspected that the bolt cutters had been used to cut the cables.
III. Store's Surveillance Video Insufficiently Authenticated
Fowler contends that because the video surveillance footage from the Family Dollar store was not properly authenticated, the trial court erred by admitting it into evidence. We agree.
The challenged video recording was a copy of another recording from a surveillance camera at the Family Dollar store. The Family Dollar store receipt found by Torrez near the stolen ATV evidencing the sale of a box cutter (the packaging of which had likewise been found near the ATV) revealed the time and date of its issuance. Torrez took the receipt to the issuing Family Dollar store and discovered that the store had a surveillance video recording from the date and time the receipt was issued. The State maintains that the surveillance video recording captured the image of a man the State alleged to be Fowler entering the Family Dollar store a few minutes before the time and date set out on the receipt found by Torrez near the ATV, then, several minutes later, buying items. However, the video made by the Family Dollar store was not saved in a format that could be copied, so Torrez (and another officer who was accompanying him) focused Torrez' police-department-issued video camera on the screen displaying the Family Dollar video and made a video recording of a portion of the Family Dollar surveillance video. The fact that the challenged video recording is a recording of a recording is not the problem which must be addressed. A problem, however, exists because there is no evidence that the original video recording portrayed what the State maintains that it depicts.
"To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." TEX. R. EVID. 901(a). "Video recordings or motion pictures sought to be used in evidence are treated as photographs and are properly authenticated when it can be proved that the images reflect reality and are relevant." Cain v. State, 501 S.W.3d 172, 174 (Tex. App.-Texarkana 2016, no pet.) (citing Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988)).
"In ruling on the admission or exclusion of photographic evidence, the trial court is accorded considerable discretion." Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). "The trial judge does not abuse his or her discretion in admitting evidence where he or she reasonably believes that a reasonable juror could find that the evidence has been authenticated or identified." Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). "[A]uthentication or identification . . . . is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims." TEX. R. EVID. 901(a).
The problem here is that while the State authenticated the video exhibit sponsored by Officer Torrez, there was no evidence presented that the video recording copied by Torrez accurately portrayed any relevant information. Torrez adequately demonstrated that the recording he made of the store's surveillance monitor was a duplicate copy of the relevant part of the original surveillance recording. However, there was no evidence presented by the State which purports to precisely describe what Torrez recorded or which sets out the circumstances that existed when the original recording was made.
In Angleton v. State, 971 S.W.2d 65 (Tex. Crim. App. 1998), the Texas Court of Criminal Appeals addressed authentication of an audiotape purportedly recording a conversation between Angleton and his brother. Angleton was accused of capital murder of his wife; the court of appeals had ordered reasonable bail be set after finding that the State failed to present sufficient evidence to warrant Angleton be held without bail.
At issue in Angleton was an audiotape recording obtained by police from Angleton's brother, a recording in which two men discuss the murder of a woman. The State offered an enhanced copy of the audiotape, the enhancement being the improvement of the sound quality and the reduction of the background noise which existed on the original. A sponsoring witness said that he had spoken on multiple occasions to both Angleton and his brother and recognized their voices as the ones heard on the audiotape. Id. at 66.
The Texas Court of Criminal Appeals found that the tape was properly authenticated as required by Rule 901, as well as by "treatment of this issue in the federal courts." Id. at 68. Specifically, the sponsoring witness testified that he had reviewed both the original and enhanced recordings and that the enhanced copy "accurately depict[ed] the contents of the original." Id. The officer also was familiar with the voices of the defendant and his brother and thus could identify the speakers on the tape. Finally, there was "no evidence that the tape contained any pauses or breaks in the recording," and its contents revealed specific inculpatory planning preparatory to the murder of Angleton's wife. Id. Thus, the circumstances surrounding the tape (including its being found in the possession of the defendant's brother, one of the participants in the recorded conversation) was "some evidence that the tape was not a fraudulent composition designed to frame [Angleton]." Id.
Here, however, there was nothing presented to show that the store's surveillance video was what the State purported it to be (an accurate recording or rendition of events in that particular store on a particular day at a particular time). While the date and time on the lower center part of the screen on Torrez' recording of the store recording generally corresponds with the date and time on the receipt found near the ATV, there was no evidence that the surveillance system was working properly on the date in question, that its on-screen clock was correctly set and functioning properly, or that the original accurately portrayed the events that purportedly occurred at the time and on the date shown in the video recording.
Absent such proof, there was no showing that the store's video recording was made on the same day as the receipt or that it accurately portrayed what the State alleged that it portrayed. Because the Family Dollar's original surveillance recording was not properly authenticated, the trial court abused its discretion in admitting the video recording into evidence.
We must now assess the error in admitting the evidence to determine whether it harmed Fowler, i.e., whether it affected his substantial rights. "Generally, errors resulting from admission or exclusion of evidence are nonconstitutional." Gotcher v. State, 435 S.W.3d 367, 375 (Tex. App.-Texarkana 2014, no pet.) (citing Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007)). We see nothing in this circumstance that would elevate the erroneous admission of the video to the level of a constitutional violation of Fowler's rights. See TEX. R. APP. P. 44.2(b). As nonconstitutional error, harm resulted if Fowler's substantial rights were affected. See Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002); 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." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). In making our assessment, we consider everything in the record, the nature of the evidence supporting the verdict, the character of the alleged error, and how it relates to other evidence in the record. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
Essentially, the State's case can be outlined as follows:
Here, the error undoubtedly affected Fowler's substantial rights and was, therefore, harmful. The Family Dollar video recording was the evidence linking Fowler to the stolen ATV. We, therefore, sustain this point of error.
III. Sufficiency of the Evidence
In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by the measure known as the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.
"[A] conviction can be supported solely by circumstantial evidence." Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). As the Court of Criminal Appeals has stated,
Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990).
Moreover, in performing a review of the sufficiency of the evidence, we must consider all of the evidence admitted at trial, even if that evidence was improperly admitted. Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004). Consequently, we consider the key evidence of Fowler's guilt—the Family Dollar video recording—in our sufficiency analysis, even though, as we have already concluded, that evidence was improperly admitted at trial.
In this case, the evidence was sufficient for a rational jury to have found beyond a reasonable doubt that Fowler stole Blassingame's ATV. To reiterate that evidence, we note that the stolen ATV was found under suspicious circumstances, hidden in a wooded area near a business which had sustained multiple burglaries, and there was evidence that bolt cutters had been used in those burglaries. Multiple bolt cutters were found in Fowler's truck. After one of the burglaries, ATV tracks were found leading off through a field, and just beyond where the tracks ended, officers found Blassingame's ATV. Fowler and/or the truck Fowler was driving at the time were found a few times in odd hours and under suspicious circumstances in the neighborhood of that business. The Family Dollar receipt found near the stolen ATV was linked to a transaction at the store. Most importantly, the Family Dollar video depicted a person making the transaction that was linked to the ATV whom the jury could have easily determined was Fowler.
Nevertheless, in light of the viewing by the trier of fact of the erroneously-admitted and harmful video recording, we reverse the trial court's judgment and remand this case for a new trial.
The Texas Court of Criminal Appeals ruled that the video had not been sufficiently authenticated and that the trial court committed harmful error by admitting it to evidence. While a police officer testified that the video was an accurate copy of the original,
Angleton found fault in Kephart's "suggest[ion] that Rule 901 was consistent with the pre-rules [of Evidence] authentication requirements." The court disavowed this approach and held, "Rule 901 is straightforward, containing clear language and understandable illustrations. Kephart is overruled." Angleton, 971 S.W.2d at 69. Angleton made clear that the Court of Criminal Appeals firmly believes Rule 901 speaks for itself when it states that the proponent of evidence must demonstrate that the evidence "is what the proponent claims it is." TEX. R. EVID. 901(a). It is our belief that Kephart was overruled primarily because of its improper incorporation of caselaw in its analysis that existed prior to the adoption of the Rules.
Like the video in Kephart (and unlike the recording in Angleton), there is no evidence in the record which establishes the origin of the original recording which was subsequently copied and presented as evidence. Cf. Hines v. State, 383 S.W.3d 615 (Tex. App.-San Antonio 2012, pet. ref'd) (arresting officer's dashboard camera did not function; another officer's camera did, and arresting officer able to testify second officer's video recording accurately represented events witnessed by arresting officer at scene).
Burks v. U.S., 437 U.S. 1, 15 (1978).