Ballard v. State

• Decision Date: 21 June 2000
• Docket Number: No. 10-99-070-CR,10-99-070-CR
• Citation: 23 S.W.3d 178
• Parties: (Tex.App.-Waco 2000) STERLING BALLARD, JR., Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 178

23 S.W.3d 178 (Tex.App.-Waco 2000)

STERLING BALLARD, JR., Appellant v. THE STATE OF TEXAS, Appellee

IN THE TENTH COURT OF APPEALS

No. 10-99-070-CR

June 21, 2000

From the 13th District Court Navarro County, Texas; Trial Court # 27,090

Before Chief Justice Davis, Justice Vance and Justice Gray.

O P I N I O N

REX D. DAVIS, Chief Justice.

The court convicted Sterling Ballard, Jr. in a bench trial of delivery of less than one gram of cocaine and sentenced him to twenty months in a state jail. See Tex. Health & Safety Code Ann. § 481.112(b) (Vernon Supp. 2000). Ballard contends in a single point that the court erred in admitting a videotape in evidence which was not properly authenticated.

A confidential informant testified at Ballard's trial that he participated in an undercover operation to purchase narcotics from suspected dealers at various locations in Navarro County. On August 25, 1998, he met some officers to undertake one of these purchases. Corsicana Police Detective Charles Fincher searched him before sheriff's deputy Elmer Tanner transported him to a location in Corsicana. The officers placed a video camera made to appear like a pager on the informant's overalls to record the transaction. Tanner activated the camera when he let the informant out of his pickup. The informant met Ballard in a shop and purchased $30 worth of cocaine from him. The informant later met Tanner and gave the narcotics to him. Tanner turned off the video camera and took it from him. They later met Fincher who again searched the informant.

At this point in the testimony, the prosecutor approached the informant with a VHS video recording marked as State's Exhibit No. 1. The informant testified that he had reviewed this recording earlier on the day of trial and it accurately depicts the events surrounding his purchase of the cocaine from Ballard. He confirmed that the recording equipment was working properly on the date in question and that, "to [his] knowledge," the recording had not been altered in any manner.

On voir dire examination by Ballard's counsel, the informant agreed that this recording is a duplicate of the much smaller original recording. He was not present when the duplicate was made and did not maintain custody of the duplicate after it was made. He is not an expert specialized in the field of video and audio recording.

The prosecutor explained that the duplicate was made to fit the court's video player and requested a continuance until the afternoon to obtain the original recording and equipment with which to play it. The court expressed reluctance to postpone the trial and asked whether Ballard even had an objection. Counsel responded:

The objection we would have, your Honor, at this point in time we would object to the introduction of it on the basis that the tape has not been in Mr. McDade's possession. He does not have the expertise to say whether or not the tape may or may not have been altered at this time. So we would object to it on that basis. It is not the original that was with him at that time, it is a copy made by, we will admit to the State's statement that it was made from a micro onto this for viewing purposes for convenience of the Court.

We will stipulate that that was the process done, but this particular witness I don't think has the ability to introduce this tape into evidence at this time.

The court overruled the objection stating, "I'm going to find the objection goes to the weight and not admissibility at this time. But I will reserve my right to change my mind."

The prosecutor then played the video recording for the court. The informant described what was happening as the recording played. He identified the persons depicted in the video except for one man whom he could not name. The audio recording is so poor that most of the conversations recorded are either inaudible or unintelligible. After the exhibit was played, the informant again testified that the recording accurately portrays the transaction depicted and that there are no alterations or additions to it.

Deputy Tanner confirmed much of the informant's testimony. He testified that the recording equipment was in good working condition on the date in question. He activated the recording device when the informant got out of his pickup and turned it off when he returned. At the conclusion of Tanner's testimony, the trial court asked him whether he questioned the authenticity of the recording. He responded, "No question. I actually saw the original before it was ever made into a copy." Ballard's counsel concluded by asking whether there is "any deviation, alteration, whatsoever" between the duplicate and the original. Tanner replied, "Not to my knowledge."

Detective Fincher similarly confirmed much of the informant's testimony. He explained that the original recording is on an eight-millimeter tape. Fincher copied the original recording on the same afternoon he retrieved it from the informant. He then placed the original in the evidence locker and secured the duplicate under lock and key in his office. Only one other detective had access to the recordings. Fincher testified that the duplicate offered in evidence is "a true and accurate copy of all of the contents on the original tape."

Ballard argues in his sole point that the court erred in admitting the duplicate video recording because it was not properly authenticated. Under this point he asserts that the original recording should have been required because: (1) the authenticity of the duplicate was questioned; (2) the original was easily obtainable by the State; and (3) the State failed to establish a proper chain of custody for the duplicate.

The State first responds that Ballard has failed to preserve all but the chain of custody complaint because he did not raise the other objections at trial. We disagree. Ballard's objection questioned whether the duplicate had been altered. This objection challenged the accuracy of the duplicate and thus its authenticity. See Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). The objection complained about the State's use of a duplicate recording. Thus, we deem it adequate to include Ballard's argument on appeal that the duplicate should have been excluded because the original was available. See Tex. R. App. P. 38.1(e).

Article X of the Rules of Evidence codifies "what was the common law 'best evidence' rule." Englund v. State, 946 S.W.2d 64, 67 (Tex. Crim. App. 1997). Rule 1002 states the general proposition that the original of a recording is required to prove its contents unless otherwise provided. See Tex. R. Evid. 1002; see also Englund, 946 S.W.2d at 67. Rules 1003 and 1004 provide exceptions to the general rule. See Hood v. State, 944 S.W.2d 743, 747 (Tex. App. Amarillo 1997, no pet.); 6 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 1002.04[3] & nn. 8-14 (Joseph M. McLaughlin, ed., 2d ed. Mar. 1997).¹ The exceptions operate independently of each other. Thus, if the proponent of a duplicate recording can establish that the proffered evidence fits within either exception, the duplicate will be admissible notwithstanding the general rule.

Rule 1003 provides in pertinent part that a "duplicate is admissible to the same extent as an original unless . . . a question is raised as to the authenticity of the original." Tex. R. Evid. 1003 (emphasis added); see also Williams v. State, 778 S.W.2d 155, 156 (Tex. App. Texarkana 1989, no pet.). Ballard did not challenge the authenticity of the original eight-millimeter recording at trial and does not on appeal. The informant, Tanner, and Fincher all testified that the duplicate was accurate. Therefore, because Ballard did not question the authenticity of the original recording, the duplicate recording offered in evidence is admissible under Rule 1003. Id.

Because the recording is admissible under the Rule 1003 exception to the best evidence rule, the State did not need to establish its admissibility under Rule 1004.

Ballard also contends that the exhibit was not properly authenticated. Before adoption of the Rules of Criminal Evidence in 1986, Texas courts subscribed to the so-called "Edwards test" to determine whether videotapes with "a simultaneous audio and visual recording" were properly authenticated. Roy v. State, 608 S.W.2d 645, 649 (Tex. Crim. App. [Panel Op.] 1980) (citing Edwards v. State, 551 S.W.2d 731, 733 (Tex. Crim. App. 1977)). Rule of Evidence 901 now provides the general rule for authentication of evidence. See Tex. R. Evid. 901. At first, the Court of Criminal Appeals determined that "Rule 901 is consistent with [Edwards and its progeny]." Kephart v. State, 875 S.W.2d 319, 322 (Tex. Crim. App. 1994) (per curiam). More recently however, the Court has expressly overruled Kephart for the following reasons:

Kephart suggested that Rule 901 was consistent with the pre-rules authentication...