Wood v. State

• Citation: 18 S.W.3d 642
• Parties: (Tex.Crim.App. 2000) JEFFREY LEE WOOD, Appellant v. THE STATE OF TEXAS NO. 73,102
• Decision Date: 24 May 2000
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 642

18 S.W.3d 642 (Tex.Crim.App. 2000)

JEFFREY LEE WOOD, Appellant v. THE STATE OF TEXAS

NO. 73,102

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

May 24, 2000

ON DIRECT APPEAL FROM KERR COUNTY

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O P I N I O N

MEYERS, J., delivered the unanimous opinion of the Court.

Appellant was convicted of capital murder on March 2, 1998, for committing murder in the course of robbery. Tex. Penal Code Ann. §19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 §§2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 §2(g).¹ Direct appeal to this Court is automatic. Art. 37.071 §(2)(h). Appellant raises ten points of error. We affirm.

In his first two points of error, appellant challenges the admission of his confession. In his first point of error, appellant argues that the trial court should have suppressed his oral statements because police refused his request for counsel. In his second point of error, appellant contends his confessions were involuntary because he was intoxicated and tired and therefore did not know the consequences of waiving his rights.

At the suppression hearing, the State introduced transcriptions of appellant's two audio-taped confessions given on January 2nd and 3rd, 1996. Appellant can be heard stating on each tape that he understood and voluntarily waived his right to counsel. Although appellant testified at the hearing that he requested counsel from several officers before he gave these statements, all five officers involved with appellant's arrest and interrogation testified to the contrary. When asked on cross-examination why he did not state on the tapes that he had previously requested counsel, appellant replied that he had been awake for two to four days and had been drinking. The two interrogating officers testified, however, that appellant appeared "wide awake" not tired or intoxicated.

At a hearing on appellant's motion to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence, and the trial court's finding may not be disturbed on appeal absent a clear abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). In reviewing the trial court's decision, we view the evidence in the light most favorable to the trial court's ruling. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

After hearing the testimony and reviewing appellant's statements, the trial court found that, on each occasion, the interrogating officers apprised appellant of his right to counsel and that appellant voluntarily waived this right. The trial court also found that appellant was neither sleep-deprived nor under the influence of drugs or alcohol at the time of either statement. The trial court's findings are supported by the testimony of the officers. The trial court did not abuse its discretion in denying appellant's motion to suppress. See Dewberry v. State, 4 S.W.3d 735, 748 (Tex. Crim. App. 1999), cert. filed, No. 99-7958 (Jan. 18, 2000). Appellant's first and second points of error are overruled.

In his third point of error, appellant claims the trial court erroneously admitted hearsay testimony as to the contents of an unauthenticated videotape.²

The evidence showed that appellant and Daniel Reneau, appellant's co-defendant, robbed a Texaco station and stole the safe, the surveillance VCR, and other items. During the course of the robbery, Reneau shot the victim. Appellant and Reneau fled to appellant's parents' home in Devine, Texas, where they attempted to open the safe with a sledge hammer and blow torch. Appellant's sixteen-year-old brother, Jonathan Wood, asked how they had obtained the safe, and appellant explained that they had robbed the service station and killed the attendant. When Jonathan expressed his disbelief that they had committed murder, appellant played the surveillance video showing Reneau shoot the victim. Then, pursuant to appellant's instructions, Jonathan destroyed the video with a blow torch.

Over appellant's objection that the State had not laid the proper predicate, Jonathan testified at trial concerning the contents of the tape:

Daniel walked into the store with a small pistol - well, fairly large, but he walked in and he pointed the gun at the dude and said something. It was blurry. I couldn't understand it, and the next thing I know was a shot and that the dude fell out of sight and he went around the back and then [appellant] was out by the truck when the shot went off, but then he walked by the door . . . and looked through the glass and then he went in and he looked over the counter and after that he went back, too, and he just cut it off.

Appellant argues that the State failed to properly authenticate the tape because Jonathan had no personal knowledge of where or when the tape was made. He further avers that "it was impossible for the state to demonstrate that the video resulted from a reliable process or system in accordance with Texas Rules of Evidence 901(b)(9)."

Texas Rule of Criminal Evidence 901 provides that "[t]he 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." See Angleton v. State, 971 S.W.2d 65, 67-68 (Tex. Crim. App. 1998). Rule 901(b) provides illustrations of authentication complying with the rule. For instance, testimony by a witness with knowledge that the matter is what it is claimed to be is an acceptable method of authentication. Tex. R. Crim. Evid. 901(b)(1). Also, the matter in question may be authenticated by its "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." Tex. R. Crim. Evid. 901(b)(4). Although generally the original recording is required to prove the content of a video tape, see Tex. R. Crim. Evid.1002, "other evidence of the contents of a . . . recording . . . is admissible if [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith." Tex. R. Crim. Evid. 1004(1).

Jonathan testified that he destroyed the tape with a blow torch; accordingly, the State was authorized to prove its contents through "other evidence." See Tex. R. Crim. Evid. 1004. Jonathan, who was familiar both with appellant and Reneau, identified them on the tape and possessed sufficient knowledge to testify to the tape's contents. See Tex. R. Crim. Evid. 901(b)(1) and (4). Moreover, the circumstances surrounding Jonathan's viewing of the tape i.e, that appellant played the tape for him to prove that they had committed murder during the course of stealing the safe serve to authenticate its contents. See Tex. R. Crim. Evid. 901(b)(4). The State's method of authentication satisfied the requirements of Rules 901 and 1004 in this case. The trial court did not abuse its discretion in admitting Jonathan's testimony describing what he had viewed on the tape. See Angleton, 971 S.W.2d at 67. Point of error three is overruled.

In his fourth point of error, appellant alleges the trial court erroneously denied his motion for mistrial asserted during the second competency hearing. Specifically, he complains that he had subpoenaed the State's expert, Dr. John Quinn, to produce "all information of any nature whatsoever relating to appellant," but that Quinn failed to bring his "raw testing data" to the competency hearing. Appellant claims the raw data was "crucial" to appellant's ability to cross-examine Quinn and to a determination of an explanation for the differing conclusions of the State's and the defense's experts.³

At the competency hearing, Quinn explained that he had never seen the subpoena because it went directly to the records department at Vernon State Hospital. Quinn testified that he tendered to appellant his entire file, with the exclusion of raw data per hospital policy. Quinn further explained that he could not have released the raw data unless the subpoena had included an explicit request for "raw data." Appellant requested a mistrial and asked that the case be reset to allow him an opportunity to obtain the raw data.

Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors:

A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Sewell v. State 805 S.W.2d 409, 413-414 (Tex.Crim.App. 1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991). The asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. Ibid. A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Ibid. A trial court's denial of a mistrial is reviewed under an abuse of discretion standard.

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, No. 99-7472, __S.Ct.__ (April 16, 2000). Assuming"raw data" was covered by appellant's subpoena and should have been produced, mistrial would have been an inappropriate remedy in these circumstances. Appellant made no showing that the material was unobtainable. Neither did he request a continuance to allow Quinn an opportunity to obtain the material, a much less drastic remedy. The trial court did not abuse its discretion in...