finding it “very doubtful” that the jury would “affirmatively give weight to what they have been told not to consider at all”
How later courts described this case
- finding it “very doubtful” that the jury would “affirmatively give weight to what they have been told not to consider at all”
- finding the strategy to be an “eminently successful one”
Written by the judges who cited it.
The opinion
ACCEPTED
01-15-00213
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/5/2015 2:19:36 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00213-CR
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXASHOUSTON, TEXAS
AT HOUSTON 10/5/2015 2:19:36 PM
CHRISTOPHER A. PRINE
Clerk
ANTHONY MICHAEL LONGORIA § APPELLANT
§
VS. §
§
THE STATE OF TEXAS § APPELLEE
__________________________________________________________________
APPEAL FROM CAUSE NO. 1378394
IN THE 337TH DISTRICT COURT
OF HARRIS COUNTY, TEXAS
___________________________________________________________________
APPELLANT’S BRIEF
___________________________________________________________________
ADAM B. BROWN
SBOT No. 01728540
300 Main, Ste. 200
Houston, Texas 77002
(713) 223-0051
(713) (FAX)
adambrownlaw@yahoo.com
ATTORNEY FOR APPELLANT
APPELLANT REQUESTS ORAL ARGUMENT
Identity of Parties and Counsel
The following is a complete list of all parties to the trial court’s judgment, and the
names and addresses of all trial and appellate counsel:
Anthony Michael Longoria ................................................................................... Appellant
State of Texas ......................................................................................................... Appellee
James Tucker Graves ............................................. Appellant’s Appointed Counsel at Trial
402 Main St., Ste. 200
Houston, Texas 77002
Abigail Anastasio ................................................... Appellant’s Appointed Counsel at Trial
50 Briar Hollow Lane, Suite 235 W.
Houston, Texas 77027
Coby Leslie ..................................................................... Assistant District Attorney at Trial
Harris County District Attorney’s Office
1201 Franklin
Houston, Texas 77002
Adam B. Brown ................................................ Appellant’s Appointed Counsel on Appeal
300 Main, Ste. 200
Houston, Texas 77002
Alan Curry ................................................................ Assistant District Attorney on Appeal
Harris County District Attorney’s Office
1201 Franklin
Houston, Texas 77002
Hon. Renee Magee .............................................................................................. Trial Judge
ii
Contents
Page
Identity of Parties and Counsel ....................................................................................
Table of Contents .........................................................................................................
List of Authorities ........................................................................................................
Statement of the Case ...................................................................................................
Issues Presented............................................................................................................
Issue One: The trial court erred in providing a limiting instruction in
the jury charge in violation of Texas Rule of Evidence 105.
Issue Two: The trial court erred in providing a limiting instruction in
the jury charge in violation of Article 36.14 of the Texas Code of
Criminal Procedure.
Issue Three: The trial court erred in providing a limiting instruction in
the jury charge in violation of Appellant’s Sixth Amendment right to
counsel.
Issue Four: The trial court abused its discretion in admitting a video
recording that was not authenticated pursuant to Texas Rule of
Evidence 901.
Summary of the Arguments .........................................................................................
Background Facts .........................................................................................................
Arguments and Authorities ..........................................................................................
Issues One, Two, and Three ...................................................................................
iii
A. Facts...........................................................................................................
B. Standard of Review ...................................................................................
C. The trial court erred in including the limiting instruction
in the jury charge. .....................................................................................
D. The error infringed on Appellant’s Sixth Amendment right to
counsel.. ....................................................................................................
E. Harm Analysis ..........................................................................................
1. Constitutional Error.. ............................................................................
2. Harm Analysis under the Almanza Standard ........................................
Issue Four ...............................................................................................................
A. Facts...........................................................................................................
B. Standard of Review ...................................................................................
C. The trial court abused its discretion in admitting the video
recording because it was not authenticated... ............................................
D. The error harmed Appellant’s substantial rights. ......................................
Prayer ...........................................................................................................................
Certificate of Service ....................................................................................................
Certificate of Compliance ............................................................................................
iv
List of Authorities
Cases:
Statutes, Codes and Constitutional Provisions:
v
To the Honorable Justices of the Court of Appeals:
Statement of the Case
Appellant Anthony Michael Longoria was charged by indictment with the
first degree felony offense of aggravated robbery, alleged to have occurred on
February 21, 2013. CR20. Appellant entered a plea of not guilty and a jury found
him guilty. CR105; 127. The jury assessed a sentence of 20 years imprisonment.
CR127. Appellant filed a motion for new trial, which was overruled by operation of
law. CR135. Appellant filed timely written notice of appeal. CR131.
Issues Presented
Issue One: The trial court erred in providing a
limiting instruction in the jury charge in violation of
Texas Rule of Evidence 105.
Issue Two: The trial court erred in providing a
limiting instruction in the jury charge in violation of
Article 36.14 of the Texas Code of Criminal
Procedure.
Issue Three: The trial court erred in providing a
limiting instruction in the jury charge in violation of
Appellant’s Sixth Amendment right to counsel.
Issue Four: The trial court abused its discretion in
admitting a video recording that was not
authenticated pursuant to Texas Rule of Evidence
901.
6
Summary of the Arguments
Issues One, Two, and Three: The trial court erred in providing a limiting
instruction for extraneous offense evidence over Appellant’s objection during the
guilt-innocence phase. Appellant did not request a limiting instruction when the
evidence was admitted, so the evidence was admitted for all purposes under Texas
Rule of Evidence 105. Thus, the limiting instruction was not law “applicable to the
case” under Article 36.14 of the Code of Criminal Procedure, and should not have
been given. Moreover, because foregoing a limiting instruction is a matter of trial
strategy, the trial court violated Appellant’s Sixth Amendment right to counsel by
overriding counsel’s strategic decision. The instruction harmed the defense because
it focused the jury’s attention on evidence Appellant wished to minimize, and
instructed the jury to consider the evidence for specific purposes.
Issue Four: The trial court erred in admitting during the punishment phase a
video recording that was not properly authenticated. The authenticating witness had
no personal knowledge that the recording equipment was functioning properly.
Additionally, the authenticating witness failed to establish how the equipment was
activated, how it was deactivated, and how the recording was accessed and
reproduced for trial. The trial court abused its discretion in admitting the evidence
because the State failed to establish that the recording system was capable of
7
producing an accurate recording. Because the video recording captured a
conversation in which Appellant and the codefendant schemed to mislead the
police, discussed the incriminating evidence, and demonstrated a conspicuous lack
of remorse, Appellant was harmed by its admission.
Background Facts
The complainant, Branislav Kupresakovic, testified that during the evening
of February 21, 2013, he was at his Katy home with his wife and his 21-year-old
son when he heard a knock at the front door. 3RR15-20. Through the peephole the
complainant observed a young Hispanic male, whom he assumed to be a friend of
his son. 3RR20. When complainant opened the door a little bit the male pushed
against the door. 3RR20-21. Two additional males appeared; the complainant
recalled that one was carrying a handgun and the other was carrying a shotgun.
3RR20-21; 31. One of the additional males had glasses and a dark scarf covering
his face. 3RR32. The males pushed the door open and entered. 3RR20-21. One of
the intruders told the complainant to get down on the ground and tried to tie him up
with tape. 3RR23.
The complainant yelled to his wife, who ran into the master bedroom along
with the complainant’s son. 3RR23; 42. Once in the bedroom, the complainant’s
son, Slaven Kupresakovic, retrieved the complainant’s handgun from under the bed.
8
3RR43. When one of the intruders entered the bedroom, Slaven shot him several
times. 3RR49-51. Slaven never saw the other two intruders, who ran out of the
house at the sound of gunfire. 3RR53.
A neighbor noticed two males running across his neighbor’s yard in a
suspicious manner and decided to follow them in his car. 3RR76. While males
circled the neighborhood in an SUV, the neighbor reported them to the Sheriff’s
department and continued to follow them until numerous patrol cars arrived and
stopped the vehicle. 3RR76-77.
The two apprehended suspects were identified as Brandon Trey King and
Appellant Longoria. 3RR114-15. The third intruder, who was killed at the scene of
the home invasion, was identified as Douglas Enriquez. 3RR115. King and
Appellant were detained in a patrol car and their conversation recorded. 3RR113-
114. Sergeant C. Clopton of the Homicide Division arrived at the scene where King
and Appellant had been apprehended and reviewed the recording. 3RR113-14. The
two suspects were then transported to the Homicide Office. 3RR115.
Appellant initially agreed to be interviewed and denied involvement, but then
indicated that he wished to terminate the interview and consult with counsel.
3RR117. After speaking with King, who had admitted involvement, Appellant told
Sergeant Clopton that he wanted to tell the truth. 3RR118-21. In a video-recorded
9
interview (State’s Exhibit 64), Appellant stated that he was visiting from out of
town and staying with his cousin King. King introduced Appellant to his friend
Douglas Enriquez, who came up with the idea to rob King’s marijuana dealer.1
Appellant did not want to do it, but King could not be dissuaded so Appellant went
along to protect King. The plan was for Enriquez to knock on the door, kick the
door down, and get the people on the floor; King and Appellant were to “just stand
there and look intimidating.” Appellant and King wore gloves and masks and
Enriquez carried the gun. Once inside the residence, Enriquez handed the gun to
Appellant and went to the back room to round up the residents. Appellant
immediately heard gunshots and he and King fled. Appellant threw the gun out the
window of King’s vehicle a short distance away. SX64
In the vehicle investigators located a backpack containing two dark-colored
bandanas, another backpack containing duct tape, and three black air-soft BB-gun
pistols. 3RR105-108. The following day, a local resident found a loaded handgun in
the street a short distance from the scene and turned it over to the sheriff’s office.
3RR89-93. The gun was found to have been reported stolen in Wiley, Texas, where
Appellant resided.2 3RR142-43.
1 Slaven Kupresakovic initially testified that he did not sell marijuana, but thereafter testified
that he had sold marijuana to King on several occasions. 4RR14.
2 Codefendant Brandon Trey King testified that he visited family in Wiley prior to the robbery.
10
Codefendant Brandon Trey King testified for the defense. King testified that
he was 18 years old at the time of the offense and Appellant was 20. 3RR158. King
and Appellant picked up Douglas Enriquez on February 21, 2013, with the plan of
going to the mall. 3RR164-65. When King drove by the house of his marijuana
dealer, Enriquez suggested robbing him. 3RR166. Enriquez exited the car first and
King followed him; as they approached the house King first noticed that Enriquez
had a gun in his waistband. 3RR168; 200. King was wearing a bandana and
carrying duct tape. 3RR168. Appellant followed King and tried to convince him to
leave and go the mall, as planned. 3RR169. King testified that Anthony looked
“shocked” when Enriquez handed him the gun after entering the house. 3RR171-72.
When King heard shots, Appellant grabbed his arm and they ran to the car.
3RR173-74. After they were apprehended and placed in a patrol car, King told
Appellant that they should tell police a fabricated story that they had just dropped
off a friend named Jackson; but thereafter at the Sheriff’s office King told
Appellant to “save himself and tell the truth.” 3RR176, 204-205. King testified that
the backpack containing the two bandanas was his, and that the backpack
containing duct tape belonged to Appellant. 3RR189-91.
Arguments and Authorities
3RR193.
11
Issue One: The trial court erred in providing a
limiting instruction in the jury charge in violation of
Texas Rule of Evidence 105.
Issue Two: The trial court erred in providing a
limiting instruction in the jury charge in violation of
Article 36.14 of the Texas Code of Criminal
Procedure.
Issue Three: The trial court erred in providing a
limiting instruction in the jury charge in violation of
Appellant’s Sixth Amendment right to counsel.
A. Facts
Appellant objected to the inclusion of the following limiting instruction for
extraneous offenses in the jury charge:
You are further instructed that if there is any evidence
before you in this case regarding the defendant’s
committing an alleged offense or offenses other than the
offense alleged against him in the indictment in this case,
you cannot consider such evidence for any purpose unless
you find and believe beyond a reasonable doubt that the
defendant committed such other offense or offenses, if
any, and even then you may only consider the same, in
determining the motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident of the defendant, if any, in connection with the
offense, if any, alleged against him in the indictment and
for no other purpose.
CR99. Appellant urged that “there really hasn’t been any evidence of extraneous
offenses” and requested that the instruction be deleted from the charge. 4RR12. The
trial court refused the request, stating that there was “very minimal” evidence of
12
extraneous offenses, namely, that Appellant had used marijuana, and evidence that
the gun used in the robbery had been stolen in Appellant’s hometown of Wiley,
Texas. 4RR12.
B. Standard of Review
To review claims of jury charge error, an appellate court must first ask
whether there was error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex.
Crim. App. 2009). If there was error and if the appellant objected to the error at
trial, “reversal is required if the error is ‘calculated to injure the rights of [the]
defendant,’ ” meaning that “there must be some harm to the accused from the
error.” Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009) (quoting
Almanza v. State, 686 S.W.2d 157, 161 (Tex. Crim. App. 1984). “[A]ny harm,
regardless of degree, is sufficient to require reversal.” Druery v. State, 225 S.W.3d
491, 504 (Tex. Crim. App. 2007).
C. The trial court erred in including the limiting instruction in the
jury charge.
In Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007), the Court of
Criminal Appeals examined whether a trial court must, sua sponte, include a
reasonable-doubt and limiting instruction in the jury charge when the State offers
evidence of an extraneous offense at the guilt stage of a criminal trial. The Court
noted that Article 36.14 of the Code of Criminal Procedure requires the trial judge
13
to deliver to the jury “a written charge distinctly setting forth the law applicable to
the case.” Id. at 247. But the Court acknowledged that a trial judge does not have a
duty to instruct the jury on all potential defensive issues, lesser-included offenses,
or evidentiary issues, because these are issues that “frequently depend upon trial
strategy and tactics.” Id. at 249. The Court further noted that Texas courts have held
that the decision of whether to request a limiting instruction concerning the proper
use of certain evidence, including extraneous offenses, may be a matter of trial
strategy. Id., citing Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.-Beaumont 1996,
pet. ref'd); Blevins v. State, 884 S.W.2d 219, 230 (Tex. App.-Beaumont 1994, no
pet.). For example, a party might well intentionally forego a limiting instruction as
part of its “deliberate ... trial strategy to minimize the jury’s recollection of the
unfavorable evidence.” Id., quoting United States v. Johnson, 46 F.3d 1166, 1171
(D.C. Cir. 1995); United States v. Rhodes, 62 F.3d 1449, 1453–54 (D.C. Cir.1995).
Moreover, if a defendant does not request a limiting instruction under Rule 105 at
the time that evidence is admitted, then the trial judge has no obligation to limit the
use of that evidence later in the jury charge. Id. at 251; Hammock v. State, 46
S.W.3d 889, 894 (Tex. Crim. App. 2001). Once evidence has been admitted without
a limiting instruction, it is part of the general evidence and may be considered for
all purposes. Id.; McGowan v. State, 375 S.W.3d 585, 593 (Tex. App.-Houston
14
[14th Dist.] 2012, pet. ref'd).
Accordingly, the Court concluded that a limiting instruction concerning the
use of extraneous offense evidence should be given in the guilt-stage jury charge
“only if the defendant requested a limiting instruction at the time the evidence was
first admitted.” Id. The Court observed that if the trial counsel’s strategy was to
forego objection and a limiting instruction so as not to emphasize the evidence, this
strategy was “eminently successful” because the appellant was convicted of a lesser
included offense. Id. at 254.
In the instant case, Appellant did not request a limiting instruction when the
evidence of his marijuana use and the stolen gun was admitted. Accordingly, under
Rule of Evidence 105, the evidence was admitted for all purposes. Thus, the
limiting instruction was not law “applicable to the case” under Article 36.14 of the
Code of Criminal Procedure, and should not have been given. Delgado, 235 S.W.3d
at 250-52.
D. The error infringed on Appellant’s Sixth Amendment right to
counsel.
By insisting on including the instruction, over Appellant’s objection, the trial
court interfered with Appellant’s apparent trial strategy of not drawing attention to
the evidence. As noted by the Court of Criminal Appeals in Delgado, the decision
of whether to request a limiting instruction concerning the proper use of certain
15
evidence, including extraneous offenses, is properly a matter of trial strategy,
namely, “to minimize the jury’s recollection of the unfavorable evidence.” Id. at
249. Numerous courts have found this strategy to be valid. See Delgado, supra, at
254; Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.-Beaumont 1996, pet. ref'd)
(“[Absent anything in the record explaining counsel's reasoning], we can only
conclude his trial strategy may have been not to draw further attention to the
extraneous offenses”); Curry v. State, 861 S.W.2d 479, 484-85 (Tex. App.-Fort
Worth 1993, pet. ref'd) (holding counsel not ineffective for not requesting limiting
instruction during punishment, because instruction was requested when extraneous
offense evidence was admitted and strategy may have been not to remind the jury of
the evidence); Agbogwe v. State, 414 S.W.3d 820, 838 (Tex. App.-Houston [1st
Dist.] 2013, no pet.) (“It is reasonable to conclude ... [that] defense counsel decided
that seeking an instruction to disregard Ozoh’s testimony would only bring further
attention to it”); McNeil v. State, 452 S.W.3d 408, 415 (Tex. App.—Houston [1st
Dist.] 2014), pet. ref’d (trial counsel’s choice not to request a burden-of-proof
instruction and a limiting instruction about extraneous offenses was pursuant to
valid strategy to avoid drawing further attention to defendant's potential extraneous
offenses or misconduct).
The Court of Criminal Appeals has observed:
16
The trial judge ordinarily should not interfere with the
attorney-client relation by inquiring into the matter of
strategy and tactics. Such an inquiry should be made only
if from all appearances there could be no plausible basis
in strategy or tactics for counsel’s actions, and then the
inquiry should be made out of the presence of the jury
and of the prosecutor. A reply by counsel that his actions
are based on strategic or tactical considerations that will
become apparent later in the trial should satisfy the court's
inquiry, and counsel should not be required to reveal his
strategy and tactics at that time. Full inquiry should be
made only if after the trial from all appearances there still
is no plausible basis in strategy or tactics for his actions.
Ex parte Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App. 1978) (footnote omitted).
These observations are grounded in the Sixth Amendment’s guarantee that
counsel be given “wide latitude . . . in making tactical decisions.” Strickland v.
Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984).
Courts considering a challenge to counsel’s performance pursuant to the Sixth
Amendment must employ a standard in which judicial scrutiny of counsel’s
performance is highly deferential, with a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. There is no legal basis for a court to apply a less
deferential standard when making judgments concerning an attorney’s strategy in
the course of trial.
“One of the primary purposes of the Sixth Amendment right to counsel is to
17
preserve the integrity of the attorney-client relationship once it has been
established.” State v. Frye, 897 S.W.2d 324, 327 (Tex. Crim. App. 1995); Patterson
v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). By supplanting
counsel’s strategy with the court’s own judgment concerning a jury charge on a
defensive issue, a court violates these Sixth Amendment principles. A judge should
not interfere, or even inquire, unless “there could be no plausible basis in strategy or
tactics for counsel’s actions.” Ewing, 570 S.W.2d at 945.
The strategy employed here has been repeatedly recognized as not just
plausible, but valid and demonstrably successful. See, e.g., Delgado, 235 S.W.3d at
254 (finding the strategy to be an “eminently successful one”). In fact, the trial
court acknowledged that the extraneous offense evidence was “very minimal”
(4RR12), circumstances that would further justify the strategy. In these
circumstances, the trial court violated Appellant’s Sixth Amendment rights in
overriding counsel’s sound judgment.
The Supreme Court examined a similar issue in Lakeside v. Oregon, 435 U.S.
333, 335, 98 S. Ct. 1091, 1092, 55 L. Ed. 2d 319 (1978). In an escape prosecution
in which the defendant did not testify, the trial court instructed the jury, over
defense objection, that the defendant’s decision not to testify should not be
considered and should not give rise to any adverse inference. 435 U.S. at 335, 98
18
S.Ct. at 1092. The defense objected on the grounds that the instruction itself called
attention to the defendant’s failure to testify. 435 U.S. at 335, 98 S.Ct. at 1093. On
appeal, the defendant urged that in certain circumstances, such as when a defense is
presented through several witnesses, the jury may not notice a defendant’s failure to
testify and the instruction would serve only to draw attention to it. 435 U.S. at 340-
41, 98 S.Ct. at 1095. The defendant challenged the trial court’s inclusion of the
instruction over defense objection on Fifth and Sixth Amendment grounds. Id.
The Court found that including the instruction over defense objection did not
violate the Fifth Amendment’s privilege against self-incrimination because the jury
was not likely to disregard the instruction; thus, the instruction could not violate the
principle it was designed to protect. Id.
The defendant also challenged the instruction on Sixth Amendment grounds,
asserting that including the instruction over defense objection interfered with trial
strategy. 436 U.S. at 341; 98 S.Ct. at 1095. The Court noted that in an adversary
system of criminal justice, there is “no right more essential than the right to the
assistance of counsel.” 435 U.S. at 341, 98 S. Ct. at 1096. But the Court held that in
this case there was no Sixth Amendment violation because the instruction (1) was
accurate, (2) was permissible, and (3) concerned a basic constitutional principle that
governs the administration of criminal justice. 435 U.S. at 341-42, 98 S. Ct. at 1096
19
(the Sixth Amendment does not “confer upon defense counsel the power to veto the
wholly permissible actions of the trial judge”).
The instant case is distinguishable in several important respects. First, the
limiting instruction was not permissible – the Court of Criminal Appeals has
mandated that that a limiting instruction concerning the use of extraneous offense
evidence should be given in the guilt-stage jury charge “only if the defendant
requested a limiting instruction at the time the evidence was first admitted.”
Delgado, supra, at 249.
Second, the limiting instruction did not concern a basic constitutional
principle, but only an evidentiary issue concerning the proper use of certain
evidence. Id. As such, the Court of Criminal Appeals has held that the decision to
forego the instruction is a strategic decision within the discretion of defense
counsel.
Third, the instruction in the instant case was fundamentally different in
content from the challenged instruction in Lakeside, which instructed the jury that it
was not to consider the defendant’s failure to testify for any purpose. In contrast,
the instruction in the instant case permitted the jury to consider evidence of
extraneous offenses for certain purposes if there was proof beyond a reasonable
doubt. Assuming the jury followed the instruction, it would draw the jury’s
20
attention to the very evidence that counsel wanted to minimize. For example,
Appellant admitted in his police interview (SX64) to using marijuana and that
stealing marijuana was possibly the motive for the robbery. Thus, the jury was
likely to find the required burden of proof met, and to find the evidence relevant for
the listed permissible purposes (motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident). The instruction in the
instant case actually frustrated the defense strategy, whereas the Lakeside
instruction did not. See Lakeside, 435 U.S. at 340, 98 S. Ct. at 1095 (finding it
“very doubtful” that the jury would “affirmatively give weight to what they have
been told not to consider at all”). Accordingly, the trial court’s interference with
trial strategy in this case amounted to a violation of the Sixth Amendment.
D. Harm Analysis
1. Constitutional Error
Because the error impinged on Appellant’s constitutional rights, Texas Rule
of Appellate Procedure 44.2(a) applies. TEX. R. APP. P. 44.2(a); Snowden v. State,
353 S.W.3d 815, 818 (Tex. Crim. App. 2011).
Rule of Appellate Procedure 44.2(a) requires reversal in constitutional error
cases “unless the court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a). The focus is
21
not on whether the jury verdict was supported by the evidence, but rather whether
the error at issue might possibly have prejudiced the jurors’ decision-making.
Pollard v. State, 255 S.W.3d 184, 190 (Tex. App.–San Antonio 2008), aff'd, 277
S.W.3d 25, 33 (Tex. Crim. App. 2009); Langham v. State, 305 S.W.3d 568, 582
(Tex. Crim. App. 2010). Error is not harmless “simply because the reviewing court
is confident that the result the jury reached was objectively correct.” Snowden, 353
S.W.3d at 819. Nonetheless, the presence of “overwhelming evidence of guilt is a
factor to be considered.” Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App.
2002). Other factors to consider may include the nature of the error, whether it was
emphasized by the State, the probable implications of the error, and the weight the
jury would likely have assigned to it in the course of its deliberations. Snowden, 353
S.W.3d at 822. The Court should examine the entire record in a neutral manner, not
“in the light most favorable to the verdict.” Hernandez v. State, 80 S.W.3d 63, 65
(Tex. App.–Amarillo 2002, no pet.) (quoting Harris v. State, 790 S.W.2d 568, 586
(Tex. Crim. App. 1989)).
In this case there can be no finding beyond a reasonable doubt that the error
did not influence the jury’s decision making. Appellant’s defense was that he was
surprised by Enriquez’s impulsive plan; he was unaware that Enriquez had a gun;
he did not have the intent to commit robbery; and he only went along in order to
22
protect his cousin (4RR19-20). The physical evidence – the presence of bandanas
and duct tape in King’s vehicle – suggests that the plan was not conceived
spontaneously, but this evidence does not necessarily contradict Appellant’s
statement and King’s testimony that Appellant was not a party to any planning.
Instructing the jury regarding its consideration of extraneous offenses likely
called the jury’s attention to Appellant’s admitted marijuana use. Moreover, the
instruction directed the jury to consider this evidence as relevant to Appellant’s
motive, intent, and absence of mistake. In response to the court’s sua sponte
instruction, defense counsel was forced to argue in closing that Appellant’s
marijuana use had not been proved beyond a reasonable doubt and could not be
considered (4RR23). But this argument was likely rejected, because Appellant
himself admitted to occasional marijuana use. The instruction also could have
directed the jury’s attention to evidence suggesting that Appellant had stolen the
gun used in the robbery, which further undermined Appellant’s defense.
For these reasons, the instruction may have influenced the jury’s decision
making process and contributed to Appellant’s conviction; accordingly, reversal is
required.
2. Harm Analysis under the Almanza Standard
Because Appellant preserved his complaint, the Court must reverse if the
23
error resulted in any harm, regardless of degree. Almanza, 686 S.W.2d at 161,
Druery, 225 S.W.3d at 504. To gauge harm, the court reviews (1) the entire jury
charge; (2) the state of the evidence, including the contested issues and weight of
probative evidence; (3) the argument of counsel; and (4) any other relevant
information revealed by the record of the trial as a whole. Id. These factors require
a finding of harm in this case.
As argued above, the sole contested issue was whether Appellant was merely
present to look after his younger cousin, or whether he intended to participate in the
robbery. The instruction likely caused the jury to focus on Appellant’s admitted
marijuana use and to connect this evidence with the permissible purposes suggested
in the instruction -- most notably, motive. The instruction thus brought the jury’s
attention to the very evidence that the defense wanted to minimize. Counsel’s
attempt to neutralize the instruction by arguing that the burden of proof was not met
was likely unsuccessful. Nothing else in the jury charge served to cure the harm.
It bears noting that the numerous courts that have rejected claims of
ineffective assistance of counsel by validating this strategy could not have come to
that conclusion without implicitly finding that a limiting instruction, in some
circumstances, is not entirely benign. See, e.g., Delgado, supra, at 254; Ryan v.
State, 937 S.W.2d 93, 104 (Tex. App.-Beaumont 1996, pet. ref'd) (“[Absent
24
anything in the record explaining counsel's reasoning], we can only conclude his
trial strategy may have been not to draw further attention to the extraneous
offenses”); Curry v. State, 861 S.W.2d 479, 484-85 (Tex. App.-Fort Worth 1993,
pet. ref'd) (holding counsel not ineffective for not requesting limiting instruction
during punishment, because instruction was requested when extraneous offense
evidence was admitted and strategy may have been not to remind the jury of the
evidence); Agbogwe v. State, 414 S.W.3d 820, 838 (Tex. App.-Houston [1st Dist.]
2013, no pet.) (“It is reasonable to conclude ... [that] defense counsel decided that
seeking an instruction to disregard Ozoh's testimony would only bring further
attention to it”); McNeil v. State, 452 S.W.3d 408, 415 (Tex. App.—Houston [1st
Dist.] 2014), pet. ref’d (trial counsel's choice not to request a burden-of-proof
instruction and a limiting instruction about extraneous offenses was pursuant to
valid strategy to avoid drawing further attention to defendant's potential extraneous
offenses or misconduct); see also Daniel D. Blinka, Ethics, Evidence, and the
Modern Adversary Trial, 19 Geo. J. Legal Ethics 1, 19 (2006) (noting that opponent
of evidence will “frequently forego limiting instructions for fear that they will only
emphasize the damaging inference”).
If, as the Court of Criminal Appeals has readily acknowledged, foregoing a
limiting instruction to minimize the jury’s recollection of unfavorable evidence
25
constitutes a valid strategy, Delgado, 235 S.W.3d at 250, then the instruction must,
in some cases, be capable of causing “some harm.” This is such a case, because the
evidence of extraneous conduct was, in the trial court’s own words “very minimal,”
and the jury might very well have overlooked the evidence but for the instruction.
Moreover, the instruction directed the jury to consider the unfavorable evidence for
certain specific purposes, such as motive, to the detriment of Appellant’s defense.
Accordingly, Appellant suffered some degree of harm, requiring reversal.
Issue Four: The trial court abused its discretion in
admitting a video recording that was not
authenticated pursuant to Texas Rule of Evidence
901.
A. Facts
During the punishment phase, the State offered State’s Exhibit 62, a video
recording of a conversation between Appellant and codefendant King captured by
patrol car recording equipment shortly their arrests. Sergeant Clopton, the
authenticating witness, testified that:
most patrol vehicles are equipped with digital cameras;
Deputy McHugh’s vehicle was equipped with a camera;
most of these cameras are activated automatically by certain triggers, such as
turning on the emergency lights or sirens, or driving at a certain speed;
26
the cameras can also be activated manually;
once activated, the cameras record until “deactivated”;
when Clopton arrived at the scene, he viewed a video that was made by
McHugh’s patrol car camera prior to his arrival;
State’s Exhibit 62, a DVD, was a fair and accurate copy of the recording
Clopton had viewed at the scene.
5RR24-27.
Appellant objected to the admission of the recording on the grounds that the
State failed to demonstrate that the recording had not been tampered with or where
it originated from. The defense further objected that Officer McHugh’s testimony
was necessary to authenticate the video because Sergeant Clopton could not
establish whether the recording device was working properly or if the original
recording was accurate or altered. 5RR27-28. The trial court overruled the
objection and admitted the exhibit. 5RR28.
The exhibit was partially published but the audio equipment malfunctioned;
the equipment was subsequently fixed so that the jury could play the recording
during deliberations. 5RR28-31. In closing argument, the State urged the jury to
play the recording and described its most damaging contents in detail. 5RR48-50.
The video depicts the patrol car responding to the scene of the traffic stop,
and then proceeding to the scene of the home invasion. Once there, the hood is
27
raised, blocking the camera’s view. During the portion of the video that contains
the conversation between Appellant and King, which begins at approximately
21:52:00 of the time display, the video depicts only the raised hood of the vehicle.
SX62.
B. Standard of Review
A trial court’s evidentiary rulings regarding expert testimony are reviewed
under an abuse of discretion standard. Gallo v. State, 239 S.W.3d 757, 765 (Tex.
Crim. App. 2007); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.
2000) (expert testimony). A trial court abuses its discretion when its decision lies
“outside the zone of reasonable disagreement.” Walters v. State, 247 S.W.3d 204,
217 (Tex. Crim. App. 2007).
C. The trial court abused its discretion in admitting the video
recording because it was not authenticated.
Authentication is a condition precedent to admissibility that may be satisfied
by “evidence sufficient to support a finding that the matter in question is what its
proponent claims.” TEX. R. EVID. 901(a). Rule of Evidence 901 governs the
authentication requirement for the admissibility of evidence and is the appropriate
analysis for the authentication of recordings. Angleton v. State, 971 S.W.2d 65, 69
(Tex. Crim. App. 1998).
Subsection (a) states that the authentication requirement for admissibility of
28
evidence is satisfied by proof sufficient to support a finding that the matter in
question is what its proponent claims it is. TEX. R. EVID. 901(a). Subsection (b)
provides a nonexclusive list of methods to authenticate evidence. One example
given is the testimony of a witness with knowledge that a matter is what it is
claimed to be. TEX. R. EVID. 901(b)(1). Another method is showing “a process or
system used to produce a result and showing that the process or system produces an
accurate result.” TEX. R. EVID. 901(b)(9).
Applying these provisions, there are at least two ways to authenticate
photographic evidence including videos. Standmire v. State, --- S.W.3d ----, 2014
WL 3882940, at *6 (Tex. App.—Waco Aug. 7, 2014, pet. ref’d). One way is by
testimony that the photo or video is an accurate representation of the object or scene
in question. Id.; Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). In
this situation, the authenticating witness is not required to be the person who
operated the camera or video equipment, but must have been a witness to the
contents of the recording. Id.
If, as in this case, the authenticating witness did not witnesses the events
recorded, a video may be authenticated by testimony that the process or system that
produced the photo or video is reliable. Id.; Reavis v. State, 84 S.W.3d 716, 720
(Tex. App.-Fort Worth 2002, no pet.). This method is commonly used with security
29
videos. Id. For authentication of such photographic or video evidence, the
authenticating witness usually (1) describes the type of system used for recording
and whether it was working properly; (2) testifies whether he reviewed the video or
photos; (3) testifies whether he removed the video or device that stores the photos;
and (4) testifies whether the video or photos have been altered or tampered with.
Id.; see also Randell v. State, No. 07–11–00493–CR, 2013 WL 309001, *2–3, 2013
Tex.App. LEXIS 742, *5–7 (Tex.App.-Amarillo Jan. 25, 2013, pet. ref'd); Warren
v. State, No. 08–11–00029–CR, 2012 WL 651642, *1–2, 2012 Tex.App. LEXIS
1544, *3 (Tex.App.-El Paso Feb. 29, 2012, no pet.) (not designated for
publication).
In the instant case, Sergeant Clopton testified that he viewed the video when
he arrived at the scene of the arrest, but his testimony did not establish (1) whether
the equipment was working properly; (2) how the recording device was activated;
(3) how it was deactivated; (4) what type of memory device the recording was
stored on; (5) what type of equipment he used to view the recording; (6) if the
recording was stored on a removable memory device, who removed the memory
device; (7) whether the memory device was tampered with prior to Clopton’s
viewing of the recording; (8) how and by whom the recording was reproduced onto
DVD. While Sergeant Clopton was generally knowledgeable about the recording
30
equipment installed in patrol vehicles; he had no personal knowledge of the
reliability of the equipment in Deputy McHugh’s vehicle.
A review of cases in which video recordings were found to be properly
authenticated by a witness with knowledge of the recording system indicate that
Clopton’s testimony falls far short in providing the necessary information about
how the recording was created and reproduced.
In Reavis v. State, 84 S.W.3d 716 (Tex.App.-Fort Worth 2002, no pet.), the
Fort Worth Court of Appeals held that a trial court did not abuse its discretion in
admitting a security videotape into evidence even though the authenticating witness
at trial had not personally witnessed the events depicted on the videotape. Id. at
720. The authenticating witness testified as follows: on the morning of the day of
the offense, he loaded the videotape into 24-hour-time-lapse recorder and pressed
“record;” he removed the videotape 15 minutes after the defendant was
apprehended; he viewed it with police officers; and he viewed tape again just prior
to his trial testimony and what he saw was identical to what he had seen on tape on
day of offense. Id.
In the instant case, Sergeant Clopton did not establish how the equipment
was activated or deactivated; who accessed the recording; how they accessed it;
what it was stored on; or how it was reproduced for trial. Moreover, Sergeant
31
Clopton could not establish whether the recording had been tampered with prior to
his arrival or whether Deputy McHugh’s recording equipment was functioning
properly. Clopton’s basic knowledge of the sheriff department’s recording
equipment and his viewing of the recording are insufficient to demonstrate that the
system produced an accurate recording.
In Page v. State, 125 S.W.3d 640 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref'd), a grocery store’s videotape of a robbery was sufficiently authenticated to be
admitted into evidence at an aggravated robbery trial, even though the store
employee who testified to accuracy of tape had not witnessed events that occurred
in videotape. The employee testified that the grocery store’s “brand-new digital
recording system” recorded images from 16 video cameras and automatically saved
those images onto a computer hard drive. Id. at 648. The employee further testified
that he accessed the digital recording system’s hard drive shortly after the robbery
and viewed the recording of the robbery with police officers. Id. The employee then
copied the recording of the robbery onto a videotape and gave it to the officers. Id.
Additionally, the employee viewed the videotape before trial and testified that it had
not been altered in any way. Id. The Court held that this evidence was sufficient to
enable a reasonable juror to conclude that the videotape was “what the State
claimed it to be” and that the trial court did not abuse its discretion in admitting the
32
videotape of the robbery into evidence. Id. at 648-49.
In contrast, all the State established about the recording in the instant case is
that the equipment may be activated in a variety of ways, and that Clopton viewed
the recording once at the scene and viewed a copy of it once before trial. The State
did not establish how the equipment was activated in this instance, what type of
device it was stored on, who accessed the recording, how Clopton viewed it at the
scene, or how and by whom it was reproduced for trial.
The Fifth Circuit has similarly required more detail regarding the creation
and duplication of photographic evidence. In United States v. Taylor, 530 F.2d 639,
641–42 (5th Cir.), cert. denied, 429 U.S. 845, 97 S.Ct. 127, 50 L.Ed.2d 117 (1976),
the court held that photographs were properly authenticated by government
witnesses who were not present during the actual robbery but testified as to the
manner in which the film was installed in the camera, how the camera was
activated, the fact that the film was removed immediately after the robbery, the
chain of its possession, and the fact that it was properly developed and contact
prints made from it. Id. at 642-43.
The deficiencies in Clopton’s testimony are more critical here because the
recording is essentially an audio recording. The open hood of the patrol car blocks
the camera’s view, so there is no picture to verify that the tape is continuous and
33
uninterrupted, a factor courts have considered in finding a video recording
authenticated. For example, in Ballard v. State, 23 S.W.3d 178, 180 (Tex. App.-
Waco 2000, no pet.), officers fitted an undercover informant with video recording
camera and activated the camera as the informant exited the officer's vehicle. Id.
After purchasing cocaine from the defendant, the informant then met back with an
officer, who turned the video recording off. Id. In determining that the videotaped
recording was properly authenticated under Rule 901, the court noted that the
recording was “continuous and uninterrupted,” the officer corroborated specific
events in the video recording, and the fact-finder could compare the recorded video
with the physical appearance of the defendant. Id. at 182; see also Watson v. State,
421 S.W.3d 186, 192 (Tex. App.—San Antonio 2013, pet. ref’d) (video recording
was authenticated where the officers had personal knowledge of the contents
contained on the videotape, the tape was continuous and uninterrupted, the officers
corroborated specific items in the recorded video, the fact-finder could compare the
recorded video with the physical appearance of the defendant, and there was no
evidence of tampering).
In the instant case, there is no video action to confirm that the recording is
continuous and uninterrupted, so simply viewing the video is not sufficient to
demonstrate that it is accurate and has not been altered. Thus, it was more important
34
to establish that the recording equipment was reliable and to establish how the
recording was created, accessed, and reproduced.
A number of unpublished cases also demonstrate that more detail regarding
the creation and reproduction of the recording is necessary to establish the
reliability of the recording system when there is no witness to the recorded events.
In Warren v. State, No. 08–11–00029–CR, 2012 WL 651642 (Tex. App.-El Paso
Feb.29, 2012, no pet.) (mem. op., not designated for publication), a burglary
prosecution, the court found a security DVD to be sufficiently authenticated by
testimony from a maintenance supervisor of the apartment complex, who explained
how the security cameras work and testified that the he removed the SD card from
the camera at issue, reviewed its contents with the complainant, and copied four
images onto a DVD, which was given to the complainant. Id. at *2. The
complainant then gave the DVD to the police. Id. The supervisor testified that the
camera at issue was capable of making true and accurate recordings and that the
DVD contained a true and accurate depiction of images taken by the camera. Id. He
stated that he did not “alter or change the images as [he] initially saw them from the
original SD card in any way.” Id. The supervisor reviewed the DVD before trial and
determined that it was “a true and accurate depiction and recording of the four
images that [he] saved off that SD card.” Id. In addition, the complainant was asked
35
whether he altered the DVD that he received from maintenance personnel, and
answered, “No, it was an exact copy on a nonrewritable DVD that maintenance had
given me, containing four clips.” Id.
In Randell v. State, 07-11-00493-CR, 2013 WL 309001, at *2 (Tex. App.—
Amarillo Jan. 25, 2013, pet. ref’d) (mem. op., not designated for publication), a
security video was sufficiently authenticated by a manager’s testimony that he
reviewed the video after being informed of the theft; that he or the store director can
“burn off” parts of the video for the police; that he did so in this case and provided
the relevant part to the police; that the recording was made simultaneously with the
actions recorded on the video; that he reviewed the contents of the copy prior to
testifying; that it had not been tampered with; that the recording was made on a
device capable of making an accurate recording; that he was trained and capable of
operating the computers or devices that record images from the surveillance
cameras; and that the recording offered was an accurate representation of the events
“as viewed by the camera.” Id. at *2.
In Garcia v. State, 05-07-00540-CR, 2008 WL 2655622, at *4 (Tex. App.—
Dallas July 8, 2008, pet. ref'd) (mem. op., not designated for publication), a security
video was properly authenticated by an apartment owner’s testimony that on the
date of the murder he had given police a security videotape. Id. The videotape was
36
recorded by a camera at his apartment complex during the hours surrounding the
offense. Id. The owner, who had installed the camera himself, testified that the
camera was working properly on the night of the offense and he had personally
loaded the videotape into the camera. Id. He noted that the date stamp on the
videotape was correct, except for the year 2008, which he had not programmed to
show the correct year of 2006. Id. He further noted that the time stamp on the
videotape was accurate “within a few minutes.” Id. The owner further testified that
he personally checks the videotapes to be sure the security cameras at the apartment
complex are working. Id.
In Teeter v. State, 05-06-00309-CR, 2007 WL 510356 (Tex. App.—Dallas
Feb. 20, 2007, no pet.) (mem. op., not designated for publication), a video recording
made on a school bus was properly authenticated by the transportation custodial
director for the school district. Id. at *9. The director described that each school bus
has a “camera eye” or lens that is located just above and to the right of the bus
driver and a video cassette recorder (VCR) in a locked box that is bolted to the floor
or the underside of the dashboard. Id. He testified that the VCRs are inspected
regularly to make certain they are operating properly, and each VCR is activated
when the school bus ignition is turned on and automatically stops when the school
bus ignition is turned off. Id. The director retrieved the videotape from the bus, put
37
it in his desk, and gave it to the police chief. Id. The director testified that he
watched the videotape after he retrieved it and again before testifying, and the
videotape was in the same or similar condition and there were no additions or
deletions to the videotape. Id. Additionally, the school children's testimony
described the events that occurred on the school bus, and these events appeared on
the video. Id.
In Brown v. State, 14-03-01265-CR, 2005 WL 363950 (Tex. App.—Houston
[14th Dist.] Feb. 17, 2005, pet. ref'd) (mem. op., not designated for publication), a
store security video was properly authenticated by the manager’s testimony that he
came to the store, stopped the videotape, and watched five to ten minutes of the tape
to see if it had captured the incident. Id. at *4. The manager and two other witnesses
were present when the videotape was removed from the recorder in the store's
surveillance room; all three witnesses testified that the outside cannister of the
videotape was damaged. Id. The witnesses also testified that the reel of tape inside
was twisted and stretched in one section but that they did not believe that the tape
itself was damaged. Id. at *4-5. An investigator for the Harris County District
Attorney's Office also testified that the outside cannister of the tape had been
damaged but the tape itself had not been. Id. at *5. The investigator replaced the
damaged canister with an undamaged canister and left the original reel of tape, then
38
re-recorded the actual occurrence from State's Exhibit 4–A into a twenty-minute
version which was admitted as State's Exhibit 6 and shown to the jury. Id. Both the
manager and the investigator testified that the exhibit is a true and accurate
representation of the original. Id.
As these cases demonstrate, authenticating witnesses must provide testimony
demonstrating, at a minimum, how the recording was accessed and reproduced.
Additionally, personal familiarity with the recording equipment is necessary to
demonstrate that the equipment was capable of producing an accurate recording.
Sergeant Clopton’s testimony wholly failed to provide this critical information.
Clopton’s testimony fell far short of the detail provided in the cases discussed;
accordingly, the trial court’s ruling admitted the exhibit was outside the zone of
reasonable disagreement.
D. The error harmed Appellant’s substantial rights.
An appellate court reviews an erroneous admission of evidence as non-
constitutional error, subject to a harm analysis under rule 44.2(b) of the Texas Rules
of Appellate Procedure. TEX. R. APP. P. 44.2(b). The court disregards non-
constitutional error unless it affects the substantial rights of the defendant. Id. “A
substantial right is affected when the error had a substantial and injurious effect or
influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271
39
(Tex. Crim. App. 1997). Neither the State nor the appellant has the burden to show
harm when an error has occurred; rather, after reviewing the record, it is the
appellate court’s duty to assess harm. Schutz v. State, 63 S.W.3d 442, 444 (Tex.
Crim. App. 2001).
A conviction or punishment should not be overturned for such error if, after
examining the entire record, there is a fair assurance that “the error did not have a
substantial and injurious effect or influence in determining the jury’s verdict.”
Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). But the court must
reverse a conviction or punishment for non-constitutional error if it is unclear
whether the result of the trial was free from substantial influence of the error.
Barshaw v. State, 342 S.W.3d 91, 94 (Tex. Crim. App. 2011); Burnett v. State, 88
S.W.3d 633, 637–38 (Tex. Crim. App. 2002)).
When conducting a harm analysis, the court considers the entirety of the
record, including jury instructions and closing arguments. Motilla v. State, 78
S.W.3d 352, 355–56 (Tex. Crim. App. 2002). In determining whether the error was
harmless, the court considers the nature of the evidence supporting the verdict, the
character of the alleged error, and how the error might be considered in connection
with other evidence in the case. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.
App. 2000). Other relevant factors may include whether the State emphasized the
40
error and whether the erroneously admitted evidence was cumulative. Id.
The only other evidence at punishment was documentation of Appellant’s ten
prior convictions. SX66-76. The State presented evidence of a second degree felony
conviction for possession of a controlled substance; three state jail felony
convictions for theft of a firearm, burglary of a building, and unauthorized use of a
motor vehicle; and six misdemeanor convictions. All of the offenses were
committed when Appellant was a teenager, and none involved violence. Defense
counsel pointed out in argument that the felony possession case involved a
prescription ADHD drug. 5RR38.
While Appellant’s criminal history certainly factored into the jury’s decision,
the video recording contained very damaging evidence that was at least equally
important. In response to a relevance objection, the State pointed out that the video
“shows his involvement in the planning and it shows his response after the other
robber was killed and they’re laughing and joking about it in the back seat of that
patrol car. It goes directly to his character. It’s exactly the kinds of things the jury
needs to hear about.” 5RR23.
The State highlighted in closing the most damaging portions and argued that
they showed Appellant to be a calculating and remorseless criminal. 5RR48-49. The
State pointed out that the video recorded Appellant and codefendant King
41
conspiring to get their story straight and fabricating a story about dropping off a
friend in the neighborhood. While this evidence was cumulative of King’s trial
testimony, several additional damaging portions were not cumulative.
For example, the State also pointed out that they discussed the incriminating
evidence, namely, the duct tape and the gun Appellant had wiped and tossed. The
State argued that this conversation indicated that the robbery was planned, rather
than spontaneous. 5RR48-49.
The State emphasized that they discussed being “nice to the cops,” and
“acting like little kids.” The State argued that this was the “same act that he put on
when he was giving his confession,” and that the jury should not fall for
Appellant’s polite demeanor in the confession video because it was “a game” and “a
ruse.” 5RR48-49.
The State also directed the jury’s attention to the fact that they were laughing
and joking about being on the show “Cops,” which demonstrated that they were not
scared or worried. The State argued that their demeanor showed a stunning lack of
remorse, considering that a firearm had been discharged and they had abandoned
their friend. The State urged that “[t]hese are the kinds of things that show you what
kind of person he really is.” 5RR48-49.
In addition to the damaging portions discussed by the State in argument, the
42
video also captured Appellant and King using offensive language, singing, and
discussing whether the complainant’s wife was “hot.” SX62.
In these circumstances there is no fair assurance that the error did not
influence the jury’s assessment of punishment. The recorded conversation
discredited Appellant’s characterization of his role in the offense – that he was
surprised by Enriquez’s actions and did not plan or willingly participate in the
robbery. As argued by the State, the recording portrayed Appellant as a calculating
and remorseless criminal. This was likely given significant weight by the jury, as it
bore directly on the circumstances of the offense and Appellant’s character.
The punishment range was 15-99 years and the jury assessed a sentence of 20
years. CR114. While the sentence is at the low end of the range, the jury likely took
account of Appellant’s youth, which even the State argued was a mitigating factor
(5RR53). It is at least unclear whether the error influenced the verdict; accordingly,
the Court should find that the error affected Appellant’s substantial rights and
reverse the judgment on punishment. Barshaw, 342 S.W.3d at 94; Burnett, 88
S.W.3d at 637–38.
PRAYER
Appellant respectfully requests that the Court reverse his conviction and
remand the cause for a new trial, or alternatively, reverse the trial court’s judgment
43
as to the punishment and remand the cause to the trial court for a new trial on
punishment only.
Respectfully submitted,
/s/ Adam B. Brown
ADAM B. BROWN
SBOT No. 01728540
300 Main, Ste. 200
Houston, Texas 77002
(713) 223-0051
(713) (FAX)
adambrownlaw@yahoo.com
ATTORNEY FOR APPELLANT
44
CERTIFICATE OF SERVICE
This document has been served on the following parties electronically
through the electronic filing manager contemporaneously and in conjunction with e-
filing on ______________________________.
Alan Curry
Assistant Harris County District Attorney
curry_alan@dao.hctx.net
/s/ Adam B. Brown
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that the relevant sections of this computer-
generated document have ________ words, based on the word count function of the
word processing program used to create the document. TEX. R. APP. P. 9.4 (i).
/s/ Adam B. Brown
45