Darden v. State

Decision Date17 March 1982
Docket NumberNo. 60576,No. 2,60576,2
PartiesJoe Earl DARDEN, Appellant, v. The STATE of Texas, Appellee
CourtTexas Court of Criminal Appeals

Frank W. Sullivan, III, Earl E. Bates, Jr., Fort Worth, for appellant.

Tim Curry, Dist. Atty., & William Kane, Jack Strickland, Howard Borg & C. Chris Marshall, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and TOM G. DAVIS and CLINTON, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated robbery. After finding appellant guilty, the jury assessed punishment at 25 years.

Appellant was convicted of the aggravated robbery of Sidney Castle at a Quik Sak store in Fort Worth on February 14, 1977. Castle died as a result of gunshot wounds he received during the course of the robbery. Appellant was sixteen years of age at the time of the offense.

In his second through seventh grounds of error, appellant contends the court erred in admitting six exhibits into evidence. The exhibits consist of a reel of developed motion picture film and five photographs. The photographs represent enlargements of five frames from the motion picture film. Appellant maintains the exhibits were inadmissible "because there was no chain of custody." He urges that "it is impossible ... to remove the doubt (of tampering) when no one can say where the film was kept or how it was handled after it was removed from the store camera."

Norman Richard testified that he was a sales manager with Armco Burglar Alarm System. He stated that the Quik Sak store was equipped with a motion picture camera which was mounted on the wall and aimed at the cash register. Richard related that the camera took two pictures per second and was activated when a money clip was removed from the cash register. Since the camera was not in constant use, a reel of film would often last for several days. Finally, Richard related that employees were to check the system at some time during their eight hour shifts. Such a check would be made by the employee removing the money clip and then listening for the motor of the camera to start running.

Janet Buckner testified that she was a clerk at the Quik Sak. She had worked the eight hour shift which ended when Castle reported for work at 8:00 p. m. on February 13, 1977. After viewing the developed motion picture film, Buckner recognized herself as having been photographed by the camera. She stated that she had been photographed when she tested the camera at 7:30 p. m. on February 13.

Officer Charles Coleman, of the Fort Worth Police Department, was the first officer to arrive at the scene of the offense. The officer stated that he arrived at the store at 3:05 a. m. on February 14. Coleman found Castle behind the counter of the store. After viewing the developed motion picture film, Coleman recognized himself as having been photographed upon entering the store and examining the victim for any sign of life.

The record reflects that between the time that Buckner and Coleman appear on the film, the film depicts two individuals standing at the counter of the store. One of the individuals is shown to be holding a firearm which is pointed in the direction of the victim's body. Appellant was identified as the man holding the firearm at the counter.

Dan Eudaley testified that he was a photographer for the Fort Worth Police Department. Eudaley stated that he made five photographs from the developed motion picture film. Each photograph represents a different frame of the film. He testified that each of the photographs fairly and accurately depicted a frame from the film in that they were exact reproductions except for size and color. Eudaley further stated that in his examination of the reel of motion picture film, he could find no evidence of modification, alteration, splicing or tampering.

Motion pictures and photographs are admissible provided there is proof of their accuracy as a correct representation of the subject at a given time and they have material relevance to a disputed issue. Roy v. State, 608 S.W.2d 645 (Tex.Cr.App.); Williams v. State, 461 S.W.2d 614 (Tex.Cr.App.). The witness who verifies such exhibits need not be the photographer nor need he have any knowledge concerning the way in which the photograph was made. David v. State, 453 S.W.2d 172 (Tex.Cr.App.).

Appellant's contention in these grounds of error centers upon the absence of evidence concerning the development process of the motion picture film. In Hammett v. State, 578 S.W.2d 699, this Court stated that if an offered item of evidence is of such a nature as not to be readily identifiable, or to be susceptible to alteration by tampering or contamination, sound exercise of the court's discretion may require a more elaborate foundation for admission than an item which is readily identifiable.

We find the court properly admitted the photographs and motion picture film. Such items were readily identifiable and admissible after the proper predicate was established by those who were depicted on the film. Just as we have held that the photographer need not be the verifying witness, we likewise hold that there is no requirement for the State to show the details of the development process in order for photographs or motion pictures to be admissible. Appellant's second through seventh grounds of error are overruled.

In his first ground of error, appellant contends the court erred in admitting his written statement into evidence. Initially, he contends the statement was inadmissible because he was not properly warned.

Appellant was arrested at his home shortly before midnight on February 15, 1977. At the time of his arrest, he was given his warnings by Officer J. R. Owens of the Fort Worth Police Department.

Following his arrest, appellant was taken before the Honorable Robert Ashmore, Justice of the Peace for Precinct 1, Place 2, Tarrant County. Due to appellant being a juvenile, he was given the following warnings 1 by Ashmore:

"(1) You have the right to remain silent and not make any statement at all, and any statement you make may be used in evidence against you;

"(2) You have the right to have an attorney present to advise you either prior to any questioning or during the questioning;

"(3) If you are unable to employ an attorney, you have the right to have an attorney to counsel with you prior to or during any interviews with peace officers or attorneys representing the State;

"(4) You have the right to terminate the interview at any time;

"(5) If you are 15 years of age or older at the time of the violation of a penal law of the grade of felony, the Juvenile Court may waive its jurisdiction and you may be tried as an adult."

Appellant was then questioned by Officer D. R. Thompson of the Fort Worth Police Department. Approximately ten hours later, appellant and Thompson appeared before the Honorable Robert Bowen, Judge Pro Tem for the Fort Worth Municipal Courts. After receiving the same warnings from Judge Bowen which had been given by Judge Ashmore, appellant signed the statement which was admitted into evidence. Thompson stated that he did not administer any warnings to appellant before taking the statement from him.

It is thus appellant's contention that the Sec. 51.09(b)(1), supra, warnings provided by the Family Code are not sufficient to satisfy Art. 38.22, V.A.C.C.P., and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, appellant urges that the warnings are insufficient because the accused juvenile is not informed that if he is unable to employ counsel, a lawyer will be appointed for him.

In Meza v. State, 577 S.W.2d 705 (Tex.Cr.App.), the juvenile defendant urged that Sec. 51.09(b)(2), supra, is unconstitutional because it permits police to take oral confessions without Miranda warnings. The contention was rejected after this Court held that Sec. 51.09, supra, does not dispense with the necessity of Miranda warnings. Thus, the confession in the instant case would be admissible only if it was shown to have been taken in compliance with Art. 38.22, supra, and Miranda.

Since Thompson did not warn appellant at the time of taking the statement, the State sought to show compliance with Art. 38.22, supra, under the following provision:

"Sec. 2. No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:

"(a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code ..."

Art. 15.17(a), V.A.C.C.P. provides as follows:

"In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county where the accused was arrested. The magistrate shall inform in clear language the person arrested of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, of his right to request the appointment of counsel if he is indigent and cannot afford counsel, and of his right to have an examining trial. He shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowed by law." (Emphasis added).

The statement signed by appellant contains the warnings which he received from Judge Ashmore under Sec. 51.09(b)(1), supra. One of the warnings on the face of the statement recites that appellant was warned: "......

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