Kephart v. State

• Decision Date: 09 March 1994
• Docket Number: No. 555-93,555-93
• Citation: 875 S.W.2d 319
• Parties: Deborah G. KEPHART, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 319

875 S.W.2d 319

Deborah G. KEPHART, Appellant, v. The STATE of Texas, Appellee.

No. 555-93.

Court of Criminal Appeals of Texas.

March 9, 1994.

Rehearing Denied May 11, 1994.

Ginny E. Campa, Austin, for appellant.

E. Bruce Curry, Dist. Atty., Susan L. Patterson, Asst. Dist. Atty., Kerrville, and Robert Huttash, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

After a jury convicted Appellant of possession of less than twenty-eight grams of cocaine the trial court assessed her punishment at ten years, probated, and a $10,000 fine. The conviction was affirmed by the Court of Appeals. Kephart v. State, No. 04-92-298-CR (Tex.App.--San Antonio, delivered March 17, 1993). This Court granted Appellant's petition for discretionary review to determine whether a video tape admitted into evidence during the guilt/innocence phase of trial was properly authenticated. Tex.R.App.Pro. 200(c)(2) & (3).

The relevant facts surrounding Appellant's arrest are somewhat unusual. On October 13, 1991, one Manuel Conde and his girlfriend, Carol King, checked in to a Comfort Inn Motel in Fredericksburg, Texas. During routine check-in procedures, the clerk became alarmed at the appearance and demeanor of Conde and called the local authorities. The authorities determined that Conde had an extensive record of drug-related arrests and subsequently set up surveillance of Conde's motel room. The following day, Conde and King were arrested and a consent to search form was obtained from them. During the search of their motel room, cocaine and drug paraphernalia were seized by police. ¹ A video camera containing a tape was also discovered.

Later that day police, investigator Danny Flores and Gillespie County Sheriff Milton Jung viewed the video tape. Sheriff Jung recognized Appellant as one of the persons on the tape, along with her husband and 8-year old daughter. The tape purports to depict various scenes in Appellant's home, interrupted by pauses in the tape. On the tape, Appellant initially appears sober, then progressively under the influence of alcohol or narcotics, until she is seen on the tape at a table, engaged in conversation with Conde. On the table in the video is a white substance and a baggie with what appears to be marihuana, and their conversation is audible on the tape. The final scene on the tape is in Conde and King's room at the Comfort Inn, with Conde and King visibly and audibly arguing over who will snort "it."

After reviewing the tape, the Sheriff called Appellant in for questioning. In a written statement Appellant said that she and her husband Phillip, nicknamed "Admiral," along with Conde and King had been together the night of October 12, 1991, and that Conde and King had used some "white powder." She also stated that Conde, King and Admiral had smoked marihuana, and the next day, Conde and King left. Appellant denied using drugs on the night in question.

During the trial the State was allowed to introduce a copy of the video tape ² and have the jury view it. Appellant objected that the tape was not properly authenticated as required by this Court's pertinent caselaw, and that it had been altered. She also asserted that its probative value was greatly outweighed by the tape's prejudicial effect, citing Tex.R.Crim.Evid. 403. ³ After a hearing outside the presence of the jury the trial court overruled the objections. The tape was introduced during the testimony of Officer Flores who, during the showing, explained to the jury the various drugs and paraphernalia allegedly displayed, and observed that Appellant had sneezed and blown her nose. Appellant continued to object, pointing out that nothing on the video tape showed her using drugs.

On appeal Appellant complained the proper predicate had not been laid for introduction of the video tape. She argued that the State had failed to comply with the seven-pronged test for admissibility of audiotapes and video tapes. Edwards v. State, 551 S.W.2d 731 (Tex.Cr.App.1977); Roy v. State, 608 S.W.2d 645 (Tex.Cr.App.1980); Huffman v. State, 746 S.W.2d 212 (Tex.Cr.App.1988). The Court of Appeals rejected this contention because the tape in the instant case was not produced by law enforcement personnel so the usual predicate required by Edwards and its progeny was not applicable. In addition the tape was relevant because it showed circumstances which could reasonably indicate the presence of narcotics in Appellant's home. Therefore, the Court of Appeals concluded the trial court did not abuse its discretion by admitting the tape.

At the outset we are faced with the question of the continued viability of the Edwards test. In Stapleton v. State, 868 S.W.2d 781 (Tex.Cr.App.1993), we held that Edwards is no longer needed as an authoritative guide for the admissibility of electronic recordings because it has been superseded by the Rules of Criminal Evidence. Id. at 786. However, we also concluded that the germane rules have incorporated substantially the seven-pronged test of Edwards. Ibid. Although Stapleton concerned the business records exception to the hearsay rule, Tex.R.Crim.Evid. 803(6), it also discussed application of Tex.R.Crim.Evid. 901 as it concerns authentication of sound recordings.

The Court of Appeals in the instant case failed to discuss the Rules, simply holding that Edwards was inapplicable because the video tape in question was not made by law enforcement personnel. However, as Appellant correctly observes, nothing in Rule 901 so limits its applicability. Rule 901(a) provides generally that when authentication or identification is necessary, the requirement "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The problem of authentication "arises whenever the relevancy of any evidence depends upon its identity, source, or connection with a particular person, place, thing, or event." S. Goode, O.G. Wellborn & M.M. Sharlot, TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 901.1, 2 Texas Practice 192 (2d Ed.1993). Tex.R.Crim.Evid. 104(b). ⁴

More specifically, Rule 901(b) lists several non-exclusive examples of how authentication may be accomplished. Rule 901(b)(1), entitled "Testimony of witness with knowledge," provides for authentication of evidence by "[t]estimony that a matter is what it is claimed to be." This rule requires the sponsoring witness to have knowledge that the evidence is what its proponent says it is. "An obvious method of satisfying the requirement of prima facie identification of an item and/or its source, etc., is to present the testimony of a person with personal knowledge that the item is what it is claimed to be." Goode, Wellborn and Sharlot, supra, § 901.3, 2 Texas Practice at 194. ⁵ Regarding photographs or motion pictures then, Rule 901(b) allows for authentication to be accomplished by the testimony of any witness who has personal knowledge that the particular item accurately represents the scene or event it purports to portray. ⁶ Since video tapes are considered photographs for purposes of our evidentiary rules, Tex.R.Crim.Evid. 1001(2), ⁷ we hold Rule 901(a) and (b) are applicable in the instant case.

In our pre-Rules cases this Court has held that the standard for admissibility of a silent motion picture is different from the audio-visual standard enunciated in Edwards. Gordon v. State, 784 S.W.2d 410, 411-412 (Tex.Cr.App.1990); Huffman v. State, 746 S.W.2d 212 (Tex.Cr.App.1988); Marras v. State, 741 S.W.2d 395 (Tex.Cr.App.1987). In Gordon this Court recognized our analysis of video admissibility consistently utilized a standard enunciated in Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972), which concerned the admission of still photographs. There we observed that "[l]ike still photographs, motion pictures may be admitted into evidence where they are properly authenticated, relevant to the issues and not violative of the rules established for the admissibility of still photographs." Gordon, supra at 412. In addition we held that even if relevant, the probative value of the evidence must not be outweighed by its prejudicial effect. Ibid.

In cases regarding admissibility of video tapes with sound, this Court has adopted the Edwards test as the correct standard. In Roy, we opined:

Videotapes are a simultaneous audio and visual recording of events. As such, a predicate is required to establish their accuracy and reliability.

* * * * * *

... Although videotapes are motion pictures as well as sound recordings, we now hold that the Edwards predicate applies to videotapes. Moreover, because of the dual aspect of videotapes they convey a greater indicia of reliability than either film or sound tapes standing alone and at least some of the Edwards elements may also be inferred from the testimony.

Id., 608 S.W.2d at 649. ⁸

Roy also involved a situation in which the video tape was produced by law enforcement personnel. We are aware of no opinions from this Court involving the use of a video tape produced by the defendant, a co-defendant or another party. However, it is clear that our pre-rules caselaw regarding authentication of video tapes required that either the Edwards test be satisfied or a sponsoring witness have knowledge of the scene depicted. Roy, supra, at 648 (police officers testified as to transactions recorded on video tapes); Huffman, supra, 746 S.W.2d at 221 (witness testified that film accurately and correctly depicted defendant's appearance and demeanor at time it was taken); Lucas v. State, 791 S.W.2d 35, 57 (Tex.Cr.App.1989) (video tape produced by county sheriff's personnel admissible because Edwards test satisfied); Marras, supra 741 S.W.2d at 404 (video tape introduced during testimony of witness with knowledge of both the scene depicted and the crime was properly admitted). Keeping these precedents in mind we hold...