Watson v. State

• Decision Date: 14 May 2014
• Docket Number: No. 04–12–00398–CR.,04–12–00398–CR.
• Parties: Robert WATSON, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

421 S.W.3d 186

Robert WATSON, Appellant

v.The STATE of Texas, Appellee.

No. 04–12–00398–CR.

Court of Appeals of Texas,

San Antonio.

Dec. 4, 2013.

Discretionary Review Refused May 14, 2014.

Anne Moore Burnham, Hutton Ask, Naomi Howard, Stephanie L. Stevens, St. Mary's University School of Law, The Center for Legal and Social Justice, San Antonio, TX, for Appellant.

Christopher Lyerla, Assistant District Attorney, Seguin, TX, for the State.

Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION, Justice, PATRICIA O. ALVAREZ, Justice.

OPINION

Opinion by: PATRICIA O. ALVAREZ, Justice.

Appellant Robert Watson was convicted by a jury of delivery of a controlled substance and sentenced to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Watson asserts (1) the trial court erred in allowing the cocaine, the photographs of the cocaine, and the laboratory report into evidence because the State failed to properly authenticate the alleged cocaine's chain of custody; (2) there was insufficient evidence of corroboration and the trial court erred in failing to provide an instruction regarding such; (3) the trial court erred in failing to provide an instruction that the alleged cocaine was either tampered with or unlawfully obtained; and (4) the silent videotape in question violated Watson's rights under the Confrontation Clause of the United States and Texas Constitutions. We affirm the trial court's judgment.

Background

In April of 2011, the Guadalupe County Sheriff's Office Narcotics Division entered into an agreement with a confidential informant, Melvin Bruns, to help secure several drug cases for indictment. In exchange for Bruns's help, the District Attorney's Office agreed not to file an evading arrest charge pending against Bruns. One of the individuals identified by Bruns was Appellant Robert Watson.

On April 12, 2011, Lieutenant John Flores fitted Bruns with an audio/video recording device. Under surveillance by the sheriff's office, Bruns drove to Watson's residence, parked the vehicle, and entered Watson's home. During the transaction, Bruns allegedly purchased cocaine from Watson. Bruns then drove to a predetermined location to meet Lieutenant Flores and Investigator Kris Deslatte. Investigator Deslatte obtained the substance in question from Bruns's vehicle. The entire proceedings, from shortly after Bruns was fitted with the recording device until Investigator Deslatte removed the substance from Bruns's vehicle, were recorded. Later analysis proved the substance in question was approximately 1.83 grams of cocaine.

On May 15, 2011, Watson was charged with one second-degree felony count—delivery of a controlled substance, namely cocaine. Because Bruns's whereabouts were unknown at the time of trial, Bruns did not testify. The jury returned a guilty verdict, and after finding the State's enhancement allegation true, assessed punishment at ten years confinement. Watson appeals.

Proper Authentication and Chain of Custody

In his first three issues, Watson argues the State failed to properly authenticate the chain of custody regarding the cocaine. More specifically, Watson argues the substance, collected by the officers and tested at the lab, cannot be tied directly to Watson. Accordingly, Watson argues the trial court erred in admitting the cocaine, the photographs of the cocaine, and the laboratory analysis of the cocaine.

A. Standard of Review

An appellate court reviews a trial court's admission of evidence under an abuse of discretion standard. Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998) (“The standard of review for a trial court's ruling under one of the rules of evidence is abuse of discretion.”); see also Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App.2007); Page v. State, 137 S.W.3d 75, 78 (Tex.Crim.App.2004). The trial court does not abuse its discretion by admitting evidence unless the court's determination lies outside the zone of reasonable disagreement. Druery v. State, 225 S.W.3d 491, 502 (Tex.Crim.App.2007) (citing Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003)); Casey, 215 S.W.3d at 879.

B. Chain of Custody

Prior to admitting evidence in a criminal case, the court must determine whether the chain of custody, i.e., continuous and uninterrupted possession of the evidence, was preserved. Martinez v. State, 186 S.W.3d 59, 62 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). A chain of custody is sufficiently authenticated when the State establishes “the beginning and the end of the chain of custody, particularly when the chain ends at a laboratory.” Id.; see also Stoker v. State, 788 S.W.2d 1, 10 (Tex.Crim.App.1989), disapproved of on other grounds, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)and Leday v. State, 983 S.W.2d 713 (Tex.Crim.App.1998). Links in the chain may be proven by circumstantial evidence. Bass v. State, 830 S.W.2d 142, 146 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). In Florence v. State, No. 14–94–00380–CR, 1996 WL 233734, at *4–5 (Tex.App.-Houston [14th Dist.] May 9, 1996, pet. ref'd) (mem. op., not designated for publication), the contraband was discarded by a suspect as he ran from the officer. Although the evidence was not collected until after the chase ended, the court held that “the interval between appellant's disposal and the officer's retrieval did not constitute a break in the chain of custody.” Id. at *4.

1. Texas Rule of Evidence 901

“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Tex.R. Evid. 901(a). The question before the trial court is whether “a reasonable juror could find that the evidence has been authenticated or identified.” Druery, 225 S.W.3d at 502. Courts traditionally provide a broad reading of Rule 901, allowing the jury to weigh the credibility of the evidence, “[s]o long as the authenticity of the proffered evidence was at least within the zone of reasonable disagreement.” Campbell v. State, 382 S.W.3d 545, 552 (Tex.App.-Austin 2012, no pet.) (internal quotation marks omitted).

2. Necessary Predicate

The predicate for introduction of a photograph and a silent videotape not accompanied by sound requires “proof of (1) its accuracy as a correct representation of the subject at a given time, and (2) its material relevance to a dispute issue.” Huffman v. State, 746 S.W.2d 212, 222 (Tex.Crim.App.1988) (concluding motion pictures without sound are simply a collection of photographs); see also Benford v. State, No. 03–02–00686–CR, 2005 WL 240611, at *2 (Tex.App.-Austin Feb. 3, 2005, pet. ref'd) (mem. op., not designated for publication). The predicate need not be laid by the photographer, the individual being photographed, or even a person present in the photograph in question. Huffman, 746 S.W.2d at 222. Any witness observing the scene depicted in the photograph may lay the predicate so long as the witness can provide testimony based on personal knowledge, sufficient to support a finding that the matter in question is what its proponent claims. Id.; see alsoTex.R. Evid. 901(a).

3. Predicate Laid Before the Trial Court

Although the silent video was directly offered through Detective John Flores, the trial court could also look to the testimony of Detective Kris Deslatte for authentication and knowledge of the video's contents. The officers testified that, despite Bruns' criminal history and current fugitive status, Bruns was very reliable and helped make several successful cases. On the day in question, officers listened to a phone conversation between Bruns and Watson. More specifically, the officers heard Watson invite Bruns to his residence to presumably purchase drugs.

Prior to Bruns leaving for Watson's residence, the officers searched Bruns and his vehicle for money or drugs and then fitted Bruns with a recording device. Only after confirming Bruns and the vehicle were clean, the officers handed Bruns money with which to purchase the drugs. The officers maintained full surveillance of Bruns traveling to Watson's residence, watched as Bruns entered Watson's residence, and watched Bruns as he exited the residence approximately eleven minutes later. The officers then picked up their surveillance of Bruns as they followed him to an agreed meeting point. The videotaped recording ran continuously, for over half an hour, from the moment the officers identified themselves on the recording until they removed the videotape after the purchase. The only break in the officers' visual surveillance was the time Bruns rounded the corner and entered Watson's residence. The officers confirmed the seized drugs were not in Bruns' vehicle or on his person prior to entering Watson's residence.

Although the audio portion of the videotape was muted before the jury, the silent recording shows an exchange of money and Watson weighing something on a scale. Based on the information provided during the controlled buy, the officers obtained and executed a search warrant on Watson's residence. The officers testified to their personal knowledge of the contents of the videotaped recording, including the beginning, the end, and all but a brief period of time when the informant was out of view. Additionally, however, after obtaining the search warrant, the officers were able to testify that the silent videotaped recording accurately reflected the interior of the residence, and more specifically, the room in which Bruns met with Watson.

4. Admission of the Videotaped Recording

The court's opinion in Ballard v. State, 23 S.W.3d 178, 180 (Tex.App.-Waco 2000, no pet.), is instructive. In Ballard, the officers used an undercover informant, fitted him with video recording camera, and activated the camera as the informant exited the officer's vehicle. Id. The informant met with the defendant and purchased...