Roy v. State

• Decision Date: 12 November 1980
• Docket Number: 60070,No. 2,Nos. 60068,60069,s. 60068,2
• Citation: 608 S.W.2d 645
• Parties: Guy Walter ROY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 645

608 S.W.2d 645

Guy Walter ROY, Appellant, v. The STATE of Texas, Appellee.

Nos. 60068, 60069, 60070.

Court of Criminal Appeals of Texas, Panel No. 2.

Nov. 12, 1980.

Jake Cook, Fort Worth, court appointed, for appellant.

Tim Curry, Dist. Atty., William Kane and John Bankston, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

Appellant appeals from three convictions resulting from three separate indictments for burglary of a habitation. On appellant's motion the three offenses were consolidated into a single jury trial. The jury found in Cause No. 12,310, the November 2, 1977 burglary of the Pierce residence, that appellant had committed two previous offenses, and punishment was set at life imprisonment. In the other two burglaries, Cause No. 12,311, the burglary of the Fowler home on October 22, 1977, and Cause No. 12,312, the burglary of the Lundgren residence which occurred on or about October 24, 1977, punishment was assessed by the jury at 25 years for each offense.

The record shows that the evidence presented in all three offenses primarily consisted of a videotape made within 24 hours after each burglary occurred. These videotapes show appellant, James Barker, and in the Pierce burglary, a third party named James Jackson, selling the stolen property to undercover police agents. The police were working with the F.B.I. in a joint crime project code named "Operation Westwind." As part of Operation Westwind, the police had established a "business," the Shadetree Landscaping Company, in a warehouse and adjoining office. Operating out of this location, the undercover police and F.B.I. agents posed as "fences" and paid informants. They would take phone calls, and arrange a meeting to buy stolen property. The callers would come to the Shadetree Landscaping Company warehouse and sell the goods while the police videotaped the entire transaction. These videotapes show the participants unloading the goods, negotiating the price, and accepting the money. All three of the burglarized homes in the instant case, as well as the Shadetree Landscaping Company, were located in Tarrant County.

In appellant's first ground of error, he contends that the trial court erred in overruling his motion for a change of venue as a matter of law. Appellant's sworn motion was supported by the affidavits of two credible persons, pursuant to Article 31.03, V.A.C.C.P. ¹ The State controverted the motion and submitted two affidavits; one executed by Assistant District Attorney Strickland, the other affiant was Deputy District Clerk Davis. The trial court held a pretrial hearing pursuant to Article 31.04, V.A.C.C.P., ² at which time the State presented these same two individuals as witnesses.

There is a well established precedent, as discussed in Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978), and Stapleton v. State, 565 S.W.2d 532 (Tex.Cr.App.1978), that an accused is entitled to a change of venue as a matter of law when the State fails to contest the motion for a change of venue by controverting affidavits, and by evidence presented at a hearing on the motion. See also, Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967). The same is equally true when the trial court denies a properly presented motion for a change of venue without conducting a pretrial evidentiary hearing, see Henley v. State, 576 S.W.2d 66 (Tex.Cr.App.1978) and Hussey v. State, 590 S.W.2d 505 (Tex.Cr.App.1979). This is not the situation presented here.

Instead, appellant contends that the State's controverting affidavits should both have been struck by the trial court, so that ipso facto he was entitled to a change of venue as a matter of law. The first reason advanced by appellant is that an assistant district attorney should not be considered "a credible person," within the meaning of Article 31.04, V.A.C.C.P., supra. We disagree. In Mansell v. State, 364 S.W.2d 391, 395 (Tex.Cr.App.1963) this Court specifically addressed this issue and held that the affidavit of the Liberty County Attorney was sufficient to raise fact issues requiring the introduction of evidence. ³ Because Article 31.04, V.A.C.C.P., supra, only requires the affidavit of "a" credible person, we need not reach the question of whether to strike the other affidavit executed by Deputy District Clerk Davis. ⁴ We hold that appellant was not entitled to a change of venue as a matter of law.

Moreover, since the trial court did conduct a pretrial evidentiary hearing, as this Court said in Ward v. State, 427 S.W.2d 876, 881 (Tex.Cr.App.1968):

"The trial court heard the evidence adduced by appellant in support of his motion for change of venue and which related to the means of knowledge of the compurgators and the existence of prejudice without objection, hence any insufficiency or defect in the State's controverting affidavit was not prejudicial. Davis v. State, 19 Tex.App. 201; Lemons v. State, 59 Tex.Cr.R. 299, 128 S.W. 416."

Here appellant raised no objection to the testimony of Deputy Clerk Davis during the hearing. Since the State also presented witnesses, such evidence also served to controvert appellant's motion. See Henley, supra. Neither does appellant raise the issue that the trial court abused its discretion by ruling adversely on the fact issues that were presented. Nor is there evidence that appellant was forced to take an objectionable juror, since the voir dire of the jury is not included in the record before us. Cf. Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977) and Von Byrd, supra, at 890. We hold, therefore, that the trial court did not err in overruling appellant's motion for a change of venue. Appellant's first ground of error is accordingly overruled.

In appellant's second and third grounds of error he contends that the trial court erred in permitting the videotapes to be shown to the jury because the videotapes constituted an attempt to bolster the unimpeached testimony of the police officers. Appellant argues that since the police officers were permitted to fully testify as to the transactions that occurred between themselves, appellant and James Barker, the videotapes were not admissible. The cases cited by appellant lend no support for his argument because these cases all are concerned with identification testimony and set out the well established rule against bolstering this type of testimony. The issue of the admissibility of the videotapes falls within the admission requirements for scientific or tangible evidence.

Videotapes are a simultaneous audio and visual recording of events. As such, a predicate is required to establish their accuracy and reliability. This Court has unswervingly upheld the seven-pronged predicate for the admission of sound recordings that was first set forth in Edwards v. State, 551 S.W.2d 731, 733 (Tex.Cr.App.1977), as follows:

"(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement ... (W)e also find that at least some of the requirements can be inferred from the testimony and need not be shown with the same particularity required for admission of other mechanically acquired evidence ..."

See also Bates v. State, 587 S.W.2d 121, 131 (Tex.Cr.App.1979) and Nacol v. State, 590 S.W.2d 481 (Tex.Cr.App.1979).

This Court has also established the necessary predicate for the admission of motion pictures. ⁵ 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.

Without indulging in a detailed recitation of each of the police officers' testimony, we merely observe that each of the Edwards elements of a proper predicate were either established by direct proof or could be inferred from the testimony. In addition, all of appellant's objections which were raised first in his motion to suppress, then reurged at several points during the trial, either did not complain of an improper predicate, or were too general to inform the trial judge or the prosecutor which of the admissibility requirements had not been met. See Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.1980) and Harris v. State, 565 S.W.2d 66 (Tex.Cr.App.1978). Neither can appellant seriously contend that these videotapes, showing the entire transaction from the starting point when appellant drove into the warehouse, unloaded the goods, and received his share of the money from the police, were not necessary or helpful in an understanding of the facts by the jury. Appellant's position, that anytime there is a witness who testifies to a transaction, thereafter all additional evidence constitutes bolstering, would act to exclude the introduction of all tangible and scientific evidence, even when a proper predicate has been laid. This contention finds no support in the case law. For these reasons, appellant's grounds of error number two and three are overruled.

Appellant next argues in his fourth ground of error that he was denied his right of confrontation of witnesses as guaranteed in the 6th Amendment, United States Constitution, Article 1, Section 10 of the Texas Constitution, and Articles 1.05 and 1.22, V.A.C.C.P. Primarily he complains about the portions of the videotapes which contain statements made by James Barker. Barker had been subpoenaed by appellant and he...