Fowler v. State
| Decision Date | 18 April 2018 |
| Docket Number | NO. PD–0343–17,PD–0343–17 |
| Citation | 544 S.W.3d 844 |
| Parties | Jamel McLelland FOWLER, Appellant v. The STATE of Texas |
| Court | Texas Court of Criminal Appeals |
Jessica Edwards, Greenville, TX, for Jamel McLelland Fowler.
John R. Messinger, Assistant State Prosecuting Attorney, Stacey Soule, State’s Attorney, Austin, TX, for State of Texas.
Appellant, Jamel McLelland Fowler, was convicted of stealing a Kawasaki Mule all-terrain vehicle (ATV) (valued at $1,500 or more but less than $20,000) from complainant Paul Blassingame.1 The jury assessed his punishment at confinement for two years. Fowler appealed his conviction. The Sixth Court of Appeals found the evidence sufficient to support Fowler's conviction; however, it reversed the conviction, holding that the trial court committed reversible error by admitting an unauthenticated videotape exhibit into evidence.2 We disagree and hold that the trial court did not abuse its discretion by admitting the video.
In 2014, Fowler was charged with three separate offenses which were consolidated and tried together. This appeal involves only the conviction arising out of the theft of a Kawasaki Mule ATV. The owner of the ATV reported that it had been stolen from property he owned in Hunt County. Officer Jaime Torrez was called to testify for the State. Officer Torrez testified that during the months of November and December, 2014, he responded to "numerous burglary calls to the Lattimore Materials business" in Royse City, Texas. The first call was in early November 2014. Upon investigating, he discovered an area where some heavy-duty wires or cables were cut, and he retrieved three bolt cutters nearby. Based on his training and experience, Officer Torrez seized the bolt cutters, believing that they could have been used by the burglars to cut locks, wire, cables, and chain-link fences located on that property. Officer Torrez described the process he went through when collecting evidence and logging it in. There was also evidence presented at the trial that multiple bolt cutters were found in Fowler's truck, and that Fowler's truck was seen driving at odd hours and under suspicious circumstances in the neighborhood near Lattimore Materials.
Officer Torrez then testified that he and another officer, Officer Dial, were called back to Lattimore Materials about a month later, in December 2014. They followed tire tracks believed to belong to an ATV leading from the Lattimore Materials building that had been burglarized. Officer Torrez testified that Officer Dial located an ATV in an open field near a heavy tree line about 100 yards north of the Lattimore Materials building. Officer Torrez found the VIN number to the ATV, and dispatch confirmed that it had been reported stolen.
On the ground about three feet from the ATV was a paper receipt from a Family Dollar store. On that receipt, which is date- and time-stamped, was listed "silver duct tape", Glade Air Freshener, two "utility knives" (also referred to by the witness as "cutters" or "box cutters")3 , and a "razor scraper" with five blades. The officers also found packaging for the box cutters lying on the ground about 15 to 20 feet from the ATV. Officers Dial and Torrez placed the evidence in an evidence locker and followed proper procedures to log all of these items into evidence. Officer Torrez testified that, based on his training and experience, what they found signified "that someone went to the Family Dollar, purchased the item, and probably was at that location with the other items there."
Later that day Officer Torrez and another officer (Officer Meek) went to the Family Dollar store that issued the receipt they had found near the ATV. Officer Torrez spoke with the manager of the store and asked for surveillance footage from the date and time listed on the receipt. The manager of the store retrieved a videotape stamped with the same date and time as on the receipt. Since the video was not in a format that allowed it to be copied, under Officer Torrez's supervision, Officer Meek used his Royse City Police Department camera to record a copy of the surveillance video. After the videotape was recorded by the police, they went back to the Royse City Police Department where the video recording was then downloaded onto a hard drive and attached to the case report. There was no audio on the tape.
Defense counsel objected to the admission of the videotape based first on the argument that the video was an incomplete copy of a recording:
[T]he video that [he] watched ... had four panes.... [A]nd in the process of his making a recording, he zeroed in on one or two different panes.... So, therefore, we have an incomplete copy of whatever it is that we have.... If he had videoed all four frames, that might be a different issue than what I'm dealing with right now ... is it a true and accurate copy because then it would have been.... [W]hen you're singling out certain portions and not making available the entire thing, that's the problem.
Defense counsel insisted that However, the trial court judge did not seem troubled by the fact that the video exhibit was a recording of a recording, nor was that considered a problem by the court of appeals: 4
In responding to the defense counsel's objection, the State agreed with the defense that the judge should review the recording to determine if it was properly authenticated and hence admissible. After watching the video, the trial judge stated as follows:
All right. We're back on the record. I think that there's one question I need to ask to make sure before I know how to proceed. And that is this, has the officer testified—I didn't hear it if he did. And I don't know if the officer has testified how he determined what time and date he was going to make the video for.... And so I think I'm going to—I would sustain the objection at this time to the admission of this until it's established what time and date. But let me say that my review of both State's Exhibit 120 and of the law says that authentication of a video under Kephart v. State, 875 S.W.2d 319 [ (Tex. Crim. App. 1994) ] is the same as a still photograph. That it depicts what it purports to depict. And the officer has testified that he made this video and how he made the video. I think the fact—just to be quite honest with you, the fact that all four frames are not depicted is not going to prevent the admissibility of this document or this video. I don't—I don't think that it does because the officer doesn't—it depicts what it purports to depict.... but I believe he needs to testify before I can rule on the admissibility of it as to how he determined when and what to videotape. And I don't think I've heard that yet.
The jury was brought back in, and the State elicited the following testimony from Officer Torrez to authenticate the video:
The defense objected that a proper predicate had not been laid, but the trial court overruled the objection and admitted the video into evidence.
The officer then testified that, on the video, the customer, who turned out to be Fowler, was "holding [ ] in his hand" "some cutters in a plastic wrap." The State argued that the video depicted Fowler entering the store and purchasing the items listed on the receipt that was found near the stolen ATV. The jury found Fowler guilty of theft of property valued at between $1,500 and $20,000 and rendered a punishment verdict of two years' confinement.
Texas Rule of Evidence 901 governs the authentication requirement for the admissibility of evidence:
(a) In General. 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.6
Authenticity may be established with evidence of "distinctive characteristics and the like," which include "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances."7 Conclusive proof of authenticity before allowing admission of disputed evidence is not required.8 Rule 901"merely requires some evidence sufficient to support a finding that evidence in question is what the proponent claims."9
On direct appeal, Fowler claimed that the trial court reversibly erred in admitting into evidence the surveillance video from the Family Dollar store. The court of appeals agreed with Fowler that the video of the store's surveillance footage had not been properly...
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