Opinion
No. 10-04-00234-CR
Opinion delivered and filed February 8, 2006. DO NOT PUBLISH.
Appeal fromthe 163rd District Court, Orange County, Texas, Trial Court No. B-030731-R. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Hawkins appeals his conviction for aggravated robbery. See TEX. PENAL CODE ANN. § 29.03(a) (Vernon 2003). We affirm. In Hawkins's one issue, he contends that the trial court erred in overruling Hawkins's objection to a video recording of the robbery. Hawkins argues:
The videotape showed a four-pane view of the store, presumably taken from four different cameras. During the middle of the tape, the camera showing the cash register and counter area was isolated and only the view from that camera was shown. The tape then showed the robbery again from a four-pane view.Hawkins contends that the video recording "was not properly authenticated, i.e., there were alterations or enhancements that were not explained." "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 admissibility of evidence is within the discretion of the trial court and will not be overturned absent an abuse of discretion." Sorto v. State, 173 S.W.3d 469, 491 (Tex.Crim.App. 2005); accord Montgomery v. State, 810 S.W.2d 372, 390-93 (Tex.Crim.App. 1991) (op. on reh'g). "The trial court abuses its discretion when the decision lies outside the zone of reasonable disagreement." Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005); accord Montgomery at 391. An "example of authentication or identification conforming with the requirements of" Rule 901 is the "[t]estimony of [a] witness with knowledge," that is, "[t]estimony that a matter is what it is claimed to be." See TEX. R. EVID. 901(b). "Regarding photographs or motion pictures," Rule 901 "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." Kephart v. State, 875 S.W.2d 319, 321 (Tex.Crim.App. 1994) (interpreting TEX. R. CRIM. EVID. 901, 49 TEX. B.J. 220, 232 (Tex.Crim.App. 1986) (repealed 1997) (current version at TEX. R. EVID. 901)), overruled on other grounds, Angleton v. State, 971 S.W.2d 65, 69 (Tex.Crim.App. 1998); accord Huffman v. State, 746 S.W.2d 212, 222 (Tex.Crim.App. 1988); see also Webb v. State, 760 S.W.2d 263, 276 (Tex.Crim.App. 1988) (no abuse of discretion in admitting extract of relevant channels from multitrack audio recording). The sheriff's deputy who responded to the robbery testified that in the course of his investigation of the convenience-store robbery he collected and secured the video tape from the store's video surveillance system. The victim, a clerk, testified that the store was equipped with such a system and that it was working on the day of the robbery, and confirmed that the deputy retrieved the tape from the system. The victim testified that she had watched the recording, and that the tape "fairly and accurately represent[ed] the events as they took place on" the date of the robbery. Hawkins objected to the chain of custody, and further objected:
[I]t's my understanding that in order to introduce a video tape into evidence that there must be testimony from someone who is familiar with the camera. They must give us the type of camera that was used, whether or not they were familiar personally with the working of the camera, specifically the working of the camera on the day in particular or the time when the camera is being used.Hawkins also complained that "there was no testimony of whether she was familiar with . . . where [the camera] was positioned, how did she know that it was working that day, other than seeing the tape after the fact, and I think it requires more specific testimony about the technical proficiency of the camera. . . ." The trial court overruled Hawkins's objections and admitted the tape. Later, on cross-examination by Hawkins, another sheriff's deputy who investigated the robbery twice testified that he did not remember whether the video image had been in one pane or four when he watched the recording. He also testified that the recording had been sent to an officer of the Beaumont Police Department "to be worked on" or "done something to." The deputy testified: "The way I understand, the video equipment that he has, what it does is it slows down. It doesn't create anything. It just slows down the — where the quality can be a better video." Hawkins renewed his objection:
[W]ith the testimony that we've heard that it was possibly tampered with, and I don't mean in any illegal manner, but tampered with or worked on by someone other than what we've heard, I don't think we can tell if that was the original video or not. As a result, I . . . ask that the Court instruct the jury that the video cannot be considered as evidence in this case because of the providence of it, not knowing what was done to it, how it was altered, if it was altered, all of those kinds of things.The trial court overruled the objection. The trial court did not abuse its discretion in overruling Hawkins's objections. The victim, an eyewitness, testified that the recording accurately represented the robbery. We overrule Hawkins's issue. Having overruled Hawkins's sole issue, we affirm.