Opinion
13-20-00169-CR
01-20-2022
THE STATE OF TEXAS, Appellant, v. MIGUEL MARTINEZ, Appellee.
Do not publish. TEX. R. APP. P. 47.2(b).
On appeal from the 332nd District Court of Hidalgo County, Texas.
Before Chief Justice Contreras and Justices Benavides and Silva
MEMORANDUM OPINION
DORI CONTRERAS CHIEF JUSTICE
Appellee Miguel Martinez, the former police chief of Sullivan City, Texas, was indicted on one count of theft and two counts of abuse of official capacity. See Tex. Penal Code Ann. §§ 31.03, 39.02. Appellant, the State of Texas, argues by one issue that the trial court erred by granting appellee's motion to suppress. We reverse and remand.
I. Background
The evidence at issue is a video recording made by Sullivan City police officer Daniel Duran with his cell phone camera. It is undisputed that the video is a second-hand recording of surveillance footage originally obtained from the Sullivan City Police Department evidence storage room and other rooms. It is also undisputed that Duran recorded only parts of the surveillance footage with his cell phone camera and that there is a gap of more than two hours between the third and fourth parts of the recording.
In his May 24, 2016 motion to suppress, appellee argued that the subject video recording should be excluded from evidence because: (1) "Texas Rule of Evidence 901 indicates that authentication of a videotape is a condition precedent to admissibility"; (2) the video is "inadmissible hearsay, a violation of the Confrontation Clause of the Sixth Amendment, and a violation of [appellee]'s constitutional right to due process"; and (3) the video "contained exculpatory evidence that was neither preserved [sic] and may have been intentionally destroyed and/or deleted by Sullivan City personnel at the police department."
At a hearing on November 1, 2016, Sullivan City Police Department officer Daniel Duran, testified that he, appellee, officer Reynaldo Cortes, and officer Angel De La Mora were cleaning an evidence storage room on May 21, 2015, when Duran observed De La Mora place "some green leafy substance into a bottle and he closed the cap on it." When defense counsel asked Duran why he did not stop De La Mora or "do anything" when he took the substance, Duran replied that he had been "dispatched to a call" by appellee. The following day, De La Mora confessed to Duran that he had taken marijuana and put it in bottles of alcohol for his father for medicinal purposes, but Duran thought that De La Mora was joking, so he did not report it.
Later, however, Duran became suspicious and so he sought to review surveillance video footage from the evidence storage room taken on May 21. He viewed the surveillance footage on May 25 and determined that the green substance taken by De La Mora from the evidence room was in fact marijuana which had been recovered as evidence from an abandoned house a year earlier. Duran made a video recording of the surveillance footage with his cell phone "[b]ecause [he] feared someone was going to try and delete it." Duran acknowledged that, before he reviewed the surveillance footage in the booking room of the police station, he disconnected a camera in that room so that other officers in the dispatch office would not be able to see what he was doing. He did not record the entire surveillance video with his cell phone, but rather only "[t]he portion that showed a crime being committed." Duran copied his cell phone video onto a DVD and gave it to investigator Bobby Garcia of the Texas Ranger Division of the Department of Public Safety. Duran testified that he gave the video to the Texas Rangers rather than Sullivan City police because "there had been several instances of suspicion of corruption" involving De La Mora in the past. Later, Garcia obtained a search warrant for the original surveillance footage, but it had been automatically erased by the video surveillance system because too much time had elapsed since the footage was recorded.
As to the subject video recording, defense counsel argued:
I am suggesting that it's like a videotape. I can't take-you can't-the [p]olice don't get the right to take parts of a video at their discretion when they have an ability to download the entirety of it and then hand you parts of it, and not only hand you parts of it, I don't get to question things that are inconsistent like he says I was dispatched out to another area, the dispatch logs show otherwise. There was no call. We have a dispatch log.
It's inconsistent with what he is saying. So with respect to the videotape, we are asking the Court to suppress the videotape because it's-it's not the
original. It's not the entire thing and we lose our right to confront witnesses in that connection.
In making its ruling, the trial court stated: "Let's get this one over with. I mean, it's clear that he selectively took a photograph or portions of it and not the entire thing. Your Motion to Suppress is granted on the video." The parties did not request findings of fact and conclusions of law, and none were filed. This appeal followed. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (permitting the State to appeal an order granting a motion to suppress evidence in a criminal case).
The trial court also granted appellee's motion to quash all three counts in the indictment. In 2018, we reversed the trial court's ruling on the motion to quash, but held that we lacked jurisdiction to consider the suppression ruling because it had not been reduced to writing. State v. Martinez, 548 S.W.3d 751, 760 (Tex. App.-Corpus Christi-Edinburg 2018, no pet.) (noting that an appeal by the State under article 44.01 of the Texas Code of Criminal Procedure "must be from a signed, written order"). The trial court signed a written order granting the motion to suppress on March 16, 2020.
II. Discussion
A. Standard of Review and Applicable Law
We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion under a bifurcated standard. Wells v. State, 611 S.W.3d 396, 405 (Tex. Crim. App. 2020). When the trial court makes express findings of fact in a suppression hearing, we afford almost total deference to those findings as long as they are supported by the record. State v. Granville, 423 S.W.3d 399, 404 (Tex. Crim. App. 2014). The same standard is applied when reviewing the trial judge's application of law to questions of fact when resolution of those questions depends on an assessment of credibility and demeanor. Wells, 611 S.W.3d at 405; Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). On the other hand, mixed questions of law and fact which do not hinge on assessments of credibility or demeanor are reviewed de novo. Wells, 611 S.W.3d at 405-06. We will sustain the trial court's ruling if it is correct under any applicable theory of law. Wells, 611 S.W.3d at 405-06.
Even under an abuse of discretion standard, a trial court has no discretion in determining what the law is or applying the law to the facts. See State v. Ballard, 987 S.W.2d 889, 893 (Tex. Crim. App. 1999) ("Misapplication of the law to the facts of a particular case is a per se abuse of discretion."); see also In re Geomet Recycling LLC, 578 S.W.3d 82, 91 (Tex. 2019); State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004) (Holcomb, J., dissenting). Thus, a failure by a trial court to analyze or apply the law correctly constitutes an abuse of discretion. See Ballard, 987 S.W.2d at 893.
"To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Tex. R. Evid. 901(a).
B. Analysis
The Texas Court of Criminal Appeals has held that "[v]ideo recordings without audio are treated as photographs and are properly authenticated when it can be proved that the images accurately represent the scene in question and are relevant to a disputed issue." Fowler v. State, 544 S.W.3d 844, 849 (Tex. 2018) (citing Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988)). The uncontroverted testimony provided at the suppression hearing established that Duran's cell phone video recording accurately represented those portions of the original surveillance footage which he chose to record; and it is undisputed that the surveillance footage accurately represented the scenes, in the evidence storage room and elsewhere, which it purported to depict. That is all the State needed to provide in order to meet its burden, under Texas Rule of Evidence 901, to authenticate the evidence. See id.; see also Tex. R. Evid. 901.
The trial court explained that the cell phone video was being suppressed because Duran "selectively" recorded portions of the surveillance footage rather than recording "the entire thing." However, there is no rule of evidence or other authority requiring "the entire thing" to be offered into evidence in order for a part of the whole to be admissible.Instead, whether a video recording is "complete" goes to the weight of the evidence, not its admissibility. See Robinson v. State, 739 S.W.2d 795, 802 (Tex. Crim. App. 1987); see also Rocha v. State, No. 05-18-00161-CR, 2019 WL 1467964, at *7 (Tex. App.- Dallas Apr. 3, 2019, pet. ref'd) (noting that "appellant's complaints about the accuracy or completeness of the video bear on the weight of the evidence and not its admissibility"); Manis v. State, No. 05-08-00459-CR, 2009 WL 1815468, at *10 (Tex. App.-Dallas June 26, 2009, no pet.) (mem. op.) (finding video recording properly authenticated, despite the fact that it had been edited to remove certain content, where witness testified that "he saved relevant portions of the recordings and that he did not edit any of the portions that he saved").
The Rule of Optional Completeness provides:
If a party introduces part of an act, declaration, conversation, writing, or recorded statement, an adverse party may inquire into any other part on the same subject. An adverse party may also introduce any other act, declaration, conversation, writing, or recorded statement that is necessary to explain or allow the trier of fact to fully understand the part offered by the opponent. "Writing or recorded statement" includes a deposition.Tex. R. Evid. 107. Appellee did not argue that the evidence was inadmissible under this rule. In any event, such an argument would lack merit because the rule governs the inclusion of evidence, not the exclusion of evidence, and thus could not be a valid basis for the trial court's ruling. See Lomax v. State, 16 S.W.3d 448, 450 (Tex. App.-Waco 2000, no pet.).
Further, the dissent suggests that the trial court could have concluded that "Duran intentionally excluded portions of the footage that may have exonerated Martinez." There was no evidence, aside from the unexplained time gap between parts three and four of the subject exhibit, which would have supported such a finding. Even if the trial court explicitly made this finding, that would not change the fact that the cell phone recording accurately represented the scenes it purported to depict. The dissent argues that "when the evidence contains multiple layers of video footage, each layer of footage needs to be authenticated"; however, each layer was authenticated in this case. In particular, as noted above, Duran's cell phone video accurately represented the portions of the surveillance footage which he chose to record, and the surveillance footage accurately represented the scenes which it purported to depict.
On this record, the trial court failed to apply the law correctly and therefore abused its discretion to the extent it granted the motion to suppress on grounds that the video was not properly authenticated. Ballard, 987 S.W.2d 889, 893. Moreover, there are no other theories of law applicable to the case and supported by the record which could support the trial court's judgment. In particular, although appellee's written motion to suppress argued that the video was inadmissible hearsay, a violation of the Confrontation Clause, and a product of "intentional[] destr[uction] and/or delet[ion] by Sullivan City personnel," those grounds were not developed by testimony at the hearing. Accordingly, the State's issue is sustained.
III. Conclusion
We reverse the trial court's judgment and remand for further proceedings consistent with this memorandum opinion.
DISSENTING MEMORANDUM OPINION
Dissenting Memorandum Opinion by Justice Silva
This case poses the question: Can enough portions of a video recording be removed as to create an inaccurate representation of the original scene? I believe it can, as explained below. That is not to say that all video exhibits must contain all possible footage; rather, a trial court should have the discretion to determine that, due to the amount of missing footage, a recording no longer accurately depicts the scene it purports to. The majority holds that the cell phone footage in question is admissible because the cell phone footage "accurately represented those portions of the original surveillance footage which [Officer Duran] chose to record." In so holding, the majority establishes that proponents of evidence need not prove that a video "accurately represent the scene in question" but merely accurately represents the portions of the scene the proponent chooses. See Fowler v. State, 544 S.W.3d 844, 849 (Tex. Crim. App. 2018). Because I believe the majority misinterprets Fowler and misapplies Texas Rule of Evidence 901, I respectfully dissent. See id.; Tex. R. Evid. 901.
I. Background
The majority accurately recites the factual and procedural background of this case. I would like to note, however, that the cell phone footage recorded by Officer Duran includes several changes of camera angle and a near three-hour gap in footage between parts three and four.
The exhibit in question contains a total of thirteen parts. Twelve of the parts contain footage from the police station while the thirteenth part shows security footage from Dollar General where Officer De La Mora allegedly purchased the alcohol bottles the same day.
II. Standard of Review
A trial court's suppression ruling is reviewed under an abuse of discretion standard, and we will only reverse the trial court's ruling if it is outside the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). Typically
[we] must apply a bifurcated standard of review, giving almost total
deference to a trial court's determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations.Id. at 922-23. However, a trial court's ruling on the admissibility of evidence is reviewed under an abuse of discretion standard and must be upheld if the trial court's ruling is within the zone of reasonable disagreement. Wells v. State, 611 S.W.3d 396, 427 (Tex. Crim. App. 2020). "An appellate court would misapply the appellate abuse of discretion standard of review to reverse a trial court's admissibility decision solely because the appellate court disagreed with it." Robbins v. State, 88 S.W.3d 256, 260 (Tex. Crim. App. 2002). "A trial court judge is given considerable latitude with regard to evidentiary rulings." Fowler, 544 S.W.3d at 848. "Different trial judges may 'reach different conclusions in different trials on substantially similar facts without abusing their discretion.'" Id. (quoting Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007)).
"[T]he trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony." State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). As such, "the judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted." Id. "[W]hen the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." Id. "[I]f the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be disturbed even if the trial judge gave the wrong reason for his right ruling." De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
III. Authentication
A. Applicable Law
Before an item of evidence is admitted, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Tex. R. Evid. 901(a); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) ("[A]uthentication [is] a 'condition precedent' to admissibility of evidence." (citing Tex. R. Evid. 901(a))). Evidence that supports a finding of authenticity may include "[t]estimony that an item is what it is claimed to be." Tex. R. Evid. 901(b)(1). "The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances" may also satisfy the requirement of authenticating an item of evidence. Id. 901(b)(4). Essentially, the proponent of evidence must "make a threshold showing that would be 'sufficient to support a finding that the matter in question is what its proponent claims.'" Tienda, 358 S.W.3d at 638 (citing Tex. R. Evid. 901(a)). "The trial court should admit proffered evidence 'upon, or subject to the introduction of evidence sufficient to support a finding of' authenticity." Id. (citing Tex. R. Evid. 104(b)). "The ultimate question whether an item of evidence is what its proponent claims then becomes a question for the fact-finder-the jury, in a jury trial." Id. The standard of admissibility under authentication is a liberal one. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015) (citing Cathy Cochran, Tex. R. Evid. Handbook 922 (7th ed. 2007-08)).
"Video recordings without audio are treated as photographs and are properly authenticated when it can be proved that the images accurately represent the scene in question and are relevant to a disputed issue." Fowler, 544 S.W.3d at 849.
B. Application
The issue before us places two standards against each other: (1) the trial court's wide latitude and accompanying deference on rulings on the admissibility of evidence; and (2) the liberal standard for authenticating evidence prior to admission. Compare Wells, 611 S.W.3d at 427, with Butler, 459 S.W.3d at 600.
The majority notes neither the rules of evidence nor case law require an entire recording be offered into evidence for it to be admissible. While I agree that the rules do not require the complete footage, the case law does require that the proponent of the evidence "prove[] that the images accurately represent the scene in question" in order for it to be admissible. Fowler, 544 S.W.3d at 849. The majority summarily concludes that the State need only prove that "Duran's cell phone video recording accurately represent[s] those portions of the original surveillance footage which he chose to record." In doing so, the majority implies that the "scene in question" is not the scene that the original surveillance footage depicts, but rather the scene that the cell phone video depicts. Thus, the majority does not consider whether the portions recorded accurately represent the scene depicted by the surveillance footage. I would hold that, similar to requiring exceptions for multiple layers of hearsay, when the evidence contains multiple layers of video footage, each layer of footage needs to be authenticated. See Tex. R. Evid. 805 ("Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.") (Emphasis added). Based on the majority's holding, if a proponent of evidence who could not authenticate particular footage records that footage with their cell phone, the trial court would not be able to consider whether the underlying footage "accurately depicts the scene in question" In determining whether to admit the second recording. See Fowler, 544 S.W.3d at 849.
In support of their decision, the majority relies on Robinson v. State to conclude that completeness goes to the weight of the evidence not its admissibility 739 S.W.2d 795, 802 (Tex Crim App 1987) (per curiam) However, Robinson analyzes the admissibility of a "pen packet" under former Texas Rules of Criminal Evidence (replaced by the 1998 Texas Rules of Evidence) See id; Ford v State, 305 S.W.3d 530, 542 (Tex Crim App 2009) (Price, J, concurring) (noting that the Texas Rules of Criminal Evidence are now defunct and not carried over to the Texas Rules of Evidence). In Robinson, the court of criminal appeals stated that complaints about the accuracy of copies go to the weight of the evidence, not its admissibility. Robinson, 739 S.W.2d at 802. Accordingly, it is inapplicable to silent videos as held by Fowler, which requires the proponent prove the accuracy of a silent video to authenticate it prior to admission. See Fowler, 544 S.W.3d at 846. The majority also cites two unpublished opinions that relied on Robinson to support their conclusion. Compare Rocha v. State, No. 05-18-00161-CR, 2019 WL 1467964, at *7 (Tex. App.-Dallas Apr. 3, 2019, pet. ref'd) (not designated for publication) (holding that appellant's complaints about accuracy or completeness go to weight not admissibility); and Manis v. State, No. 05-08-00459-CR, 2009 WL 1815468, at *10 (Tex. App.-Dallas June 26, 2009, no pet.) (mem. op.) (not designated for publication) (same), with Fowler, 544 S.W.3d at 849. Because of their mistaken reliance on Robinson, I do not find these cases to be instructive. See Rocha, 2019 WL 1467964, at *7; Manis, 2009 WL 1815468, at *10; see also Tex.R.App.P. 47.7.
In the present case, the cell phone footage offered by the State includes a near three-hour gap in the original surveillance footage. When offering the cell phone footage as an exhibit, the State failed to offer any evidence explaining the large gap in footage. Further, Duran testified that he only recorded "[t]he portion that showed a crime being committed." However, the trial court "may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted." Ross, 32 S.W.3d at 855. Accordingly, the trial court was free to disbelieve Duran's testimony and instead conclude that Duran intentionally excluded portions of the footage that may have exonerated Martinez, and thus, the video did not accurately represent the scene in question. See id.; Fowler, 544 S.W.3d at 849.
The majority concludes that the first layer of surveillance footage was authenticated because "it is undisputed that the surveillance footage accurately represented the scenes, in the evidence storage room and elsewhere, which it purported to depict." I disagree. The trial court made no such finding and Martinez specifically requested "the [trial court] conduct an evidentiary hearing relating to whether any [o]fficer or Sullivan City personnel knowingly or intentionally tampered with or destroyed evidence relating to the original videotape." When no findings of fact or conclusions of law are made by the trial court, "we must presume that the trial court implicitly resolved all issues of historical fact and witness credibility in the light most favorable to its ultimate ruling." State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011). The majority relies on uncontroverted testimony from Duran that his video recording accurately represented those portions of the original surveillance footage which he chose to record. Duran further testified that he recorded "[t]he portion that showed a crime being committed." However, the trial court "is entitled to believe or disbelieve all or part of the witness's testimony- even if that testimony is uncontroverted-because [it] has the opportunity to observe the witness's demeanor and appearance." Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
Although the initial standard for authentication is a liberal one, see Butler, 459 S.W.3d at 600, the State was still required to authenticate the video as a prerequisite to admissibility. Tienda, 358 S.W.3d at 638. Because the cell phone video contains a near-three-hour gap in footage and the State failed to offer an explanation, the trial court could have reasonably concluded that the footage did not "accurately represent the scene in question." See Fowler, 544 S.W.3d at 849; cf. Watson v. State, 421 S.W.3d 186, 192 (Tex. App.-San Antonio 2013, pet. ref'd) (concluding the proper predicate was laid under Rule 901(a) where "[t]he tape was continuous and uninterrupted, [and] the officers corroborated specific items in the recorded video.") (emphasis added). As such, I believe the trial court's decision falls within the zone of reasonable disagreement and should not be disturbed. Martinez, 348 S.W.3d at 922. I would overrule the State's sole issue and affirm the trial court's ruling.
I do agree with the majority that the other grounds raised by Martinez were not developed by testimony at the hearing and are not applicable to the case. Specifically, silent videos do not contain testimonial statements and would thus not violate the confrontational clause. See Watson, 421 S.W.3d at 196. Further, the video does not contain any oral or written expressions or nonverbal conduct intended to substitute verbal expression and would thus not constitute hearsay. See Tex. R. Evid. 801(a); Watson, 421 S.W.3d at 196. Finally, there is no evidence that the State acted in bad faith, which would be necessary to suppress evidence based on a violation of due process. See Arizona v. Youngblood, 4 88 U.S. 51, 58 (1988) ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.").
IV. Conclusion
I would affirm the trial court's judgment.