Opinion
01-21-00349-CR
12-29-2022
JOSHUA MATHIS GARCIA, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1624811
Panel consists of Justices Kelly, Landau, and Farris.
MEMORANDUM OPINION
Peter Kelly Justice
A jury convicted appellant Joshua Mathis Garcia of the offense of evading arrest with a vehicle. See TEX. PENAL CODE § 38.04(A). The enhancements in the indictment alleged that garcia was twice previously convicted of the felony of evading arrest with a motor vehicle. The trial court found both enhancements true and sentenced Garcia to 35 years in prison.
On appeal, Garcia raises three issues arguing that the trial court erred by admitting a recorded phone call because (1) it was improperly authenticated under Rule of Evidence 901, (2) it violated the Confrontation Clause in the Sixth Amendment to the United States Constitution, and (3) the probative value was substantially outweighed by its prejudicial effect under Rule 403.
We modify the judgment to reflect Garcia's plea to the enhancement allegations, and as modified, we affirm the judgment of the trial court.
Background
In March 2019, City of Houston Police Officer S. Rodriguez was working with the crime suppression team, a specialized unit investigating a series of auto thefts and burglaries of motor vehicles from open-surface, paved parking lots in downtown Houston. These crimes mainly occurred at a certain parking lot, during the day, and involved theft of guns from Ford trucks. Most of the burglaries involved the use of a white Chevy Tahoe from around the year 2000, with chrome rims, a paper license plate, and a black roof-mounted luggage rack.
On March 15, 2019, during the day, Officer Rodriguez was working surveillance as a plainclothes officer, keeping watch over the lot in question. He was watching for the white Chevy Tahoe and for people concealing their faces, walking between cars, looking into vehicles, checking door handles, and using prying tools (like a screwdriver or crowbar) to gain entry to a vehicle. His role was to act as a "good witness" and relay information to other, uniformed members of the team, who were nearby in marked police cars.
While on duty, Officer Rodriguez saw a white Chevy Tahoe with chrome rims, a paper license plate, and a black roof-mounted luggage rack enter the parking lot that was under surveillance, slowly drive around the lot, and pull up beside a Ford F-350. A man, who was about 150 to 180 pounds and about 5'10" to 6'2" tall and who wore a dark-colored hoodie that was pulled tight to partially cover his face, got out of the passenger side of the Tahoe. The man "went back into the passenger door and closed it," before coming back out. Officer Rodriguez then "saw a forced movement on the door lock," and the driver's door to the F-350 opened. The brake lights of the F-350 came on, and it drove away, with the Tahoe following behind. Officer Rodriguez informed the team, including another plainclothes officer, J. Portillo.
Officer J. Portillo was also working that day as a plainclothes officer as part of the same crime suppression team. He testified that he heard about the Ford F-350 and the Chevy Tahoe over the radio and that he initially could not see the parking lot that was under surveillance from his location. Based on the information relayed over the radio, Officer Portillo moved and was able to then observe both the Tahoe and the F-350, which were stopped at a red light.
When the light turned green, two marked patrol cars, driven by members of the same crime suppression team, activated lights and sirens and attempted to stop the F-350, but it did not stop. The Tahoe went in one direction, and Officer Portillo followed it. The F-350 went in a different direction and the marked patrol cars followed it. A twenty-minute and approximately 15-mile police chase ensued from the streets of downtown Houston, on to stretches of two freeways, through residential neighborhoods, on the METRORail tracks, and, briefly, off road. The F-350 exceeded the posted speed limits and committed multiple traffic violations including running red lights and weaving through lanes without signaling. Other cars and pedestrians were present for some parts of the chase; on the freeway, there was light rain and moderate traffic. In addition to officers from the crime suppression unit, Officer V. Torres and her partner, who were working as patrol officers nearby, joined the chase. The chase ended when the F-350 crashed through a fence into a parked vehicle, near the Hardy Toll Road, between I-610 and Beltway 8. After the crash, Garcia fled on foot, but he was quickly apprehended and arrested. When he was arrested, Garcia was wearing a dark colored sweatshirt, shorts, and gloves. When officers searched the F-350, they found a loaded gun in the center console, within reach of the driver. The gun and an additional magazine were secured and stored as evidence.
Garcia was charged with evading arrest while using a motor vehicle. The indictment alleged that before the commission of the charged offense, he was twice previously convicted of the felony of evading arrest with a motor vehicle in Harris County.
At trial, the State sought to offer an audio recording of a phone call allegedly made by Garcia to an unidentified speaker the morning after he was arrested. To authenticate the recording, the State offered the testimony of the records custodian for the county jail and the testimony of one officer who spoke with Garcia when he was arrested.
Harris County Sheriff's Deputy L. Ontiveros testified that he is the custodian of the records for the inmate audio files and the inmate phone system for Harris County, which is called Securus. He testified briefly about the booking process and how inmates have access to phones during and after booking.
Deputy Ontiveros testified that when a person is taken into custody, he is first brought to the joint inmate processing center ("JPC") for booking. This process includes fingerprinting and gathering information like emergency contacts, next of kin, and telephone numbers. Once an inmate has been booked into a housing cell in the county jail, he is assigned a sheriff's processing number ("SPN") to be used to make outgoing phone calls. Records of outgoing phone calls, including the number dialed, are kept for five years in the Securus system. Calls are organized by SPN number, so that they can be associated with a particular inmate. Unlike the phones in the housing cells, the phones in the JPC are free for arrested people to use and do not require an SPN number to make an outgoing call. Deputy Ontiveros testified that the JPC phone records are searchable by date and by the outgoing phone number that was dialed.
Deputy Ontiveros searched the JPC phone records for the time when Garcia was there for booking on charges of evading arrest in connection with twentyminute police chase of the F-350. He identified a phone call made from the JPC at 7:18 a.m. on March 16, 2019, when Garcia was at the JPC, to a number later dialed from the housing cells and associated with Garcia's SPN.
Officer Torres, the patrol officer who joined the chase, testified that she had a two-minute conversation with Garcia when he was arrested. She later reviewed her body camera recording with audio, and she listened to the recorded jail call that the State wished to offer. Officer Torres testified that she was able to identify the voice of one of the individuals on the jail call. She testified that she had initially identified the caller as identifying himself as "John" but upon hearing the recording again, she heard the caller identify himself as Josh. She testified that the defendant, Joshua Garcia, made the recorded jail call that was admitted at trial. She then identified the defendant in open court.
An on-the-record hearing regarding admissibility of the audio recording was initially held outside the presence of the jury. After the trial court ruled that the recording was admissible, the same authentication evidence was presented to the jury, Garcia reurged his objections to the admission of the audio recording, the trial court overruled the objections and admitted the audio recording.
The audio recording of that call was admitted into evidence over Garcia's objections that it was hearsay, irrelevant, substantially more prejudicial than probative, and a violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution.
The recorded call was played for the jury. The audio recording is not entirely clear, but some words were audible and identifiable. The call begins with the speaker identifying himself as "Josh." He mentions "evading arrest" and "theft" charges and "getting a bond." He says that the police "got me over by Hardy and the Beltway." The words "Tahoe" and "White Tahoe" are mentioned several times, and the caller warns, "They're onto you." The caller says, "Don't be in that white thing no more," and tells him to stop going to "Dtown . . . Downtown," because "They're right there waiting.... They're trying to figure something out." The caller also said that the police asked him, "Who is that other dude?" The caller described a car chase, and the recipient of the call asked if they "chased us" through downtown. The caller mentioned two "plainclothes" officers and identified two cars they used: a blue Toyota and a black Malibu.
The jury found Garcia guilty of evading arrest, and after finding both enhancement allegations true, the trial court sentenced Garcia to 35 years in prison. Garcia appealed.
Analysis
On appeal, Garcia raises three issues, all of which challenge the admission of the recorded phone call. In his first issue, Garcia asserts that the call was not properly authenticated. In his second issue, he contends that the recorded phone call violated his right to confront adverse witnesses because the recipient was not identified. Finally, in his third issue, he maintains that the prejudicial effect of the recorded phone call substantially outweighed its probative value.
I. Standards of review
We review a trial court's ruling on the admission of evidence for an abuse of discretion. Colone v. State, 573 S.W.3d 249, 263-64 (Tex. Crim. App. 2019); Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). A trial court "abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably." Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); see Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (stating that trial court does not abuse discretion unless decision "lies outside the zone of reasonable disagreement").
When an appellant challenges the admissibility of evidence over a Confrontation Clause objection, we defer to the trial court's determination of historical facts and credibility, and we review de novo the court's determination regarding the Confrontation Clause objection. Wall v. State, 184 S.W.3d 730, 742, 743 &n.48 (Tex. Crim. App. 2006) (noting that appellate courts review trial court rulings on admissibility of hearsay evidence under abuse of discretion standard but review Confrontation Clause objections to admission of evidence under de novo standard).
II. The recorded jail call was properly authenticated and relevant.
Garcia's first and third issues are related. In his first issue, Garcia argues that the trial court abused its discretion by overruling his objection to the admission of the recorded jail call because it was not properly authenticated. He asserts that the State produced no evidence that he placed the call or that it was his voice on the recorded call. He notes that the State offered the testimony of an officer who spoke to him for only two minutes after his arrest and that she was told that it was Garcia's voice on the recording that she would be asked to identify. In his third issue, Garcia asserts that the court abused its discretion by admitting the audio recording because its probative value was substantially outweighed by the danger of unfair prejudice. He asserts that because there is no evidence that he made the call, the recording has no relevance at all. Thus, he argues that the audio recording was inadmissible under Rule of Evidence 403.
Whether to admit evidence at trial is a preliminary question to be decided by the court. Tienda v. State, 358 S.W.3d 633, 637-38 (Tex. Crim. App. 2012); see TEX. R. EVID. 104(A). Relevant evidence is generally admissible so long as it is authentically what its proponent claims it to be. Tienda, 358 S.W.3d at 638. Rule of Evidence 901(a) states: "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). Authentication of evidence is a preliminary question for the trial court. Tienda, 358 S.W.3d at 638; see TEX. R. EVID. 104(A). Because the trial court acts as gatekeeper in matters of authentication, "the trial court itself need not be persuaded that the proffered evidence is authentic." Tienda, 358 S.W.3d at 638. Rather, the trial court must determine "whether the proponent of the evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic." Id.
Rule 901 lists nonexclusive examples of evidence that satisfy the authentication requirement. Tex. R. Evid. 901(b). As relevant to this case, the list includes:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
....
(5) Opinion About a Voice. An opinion identifying a person's voice--whether heard firsthand or through mechanical or electronic transmission or recording-based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
....
(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.Id.
Courts have found recorded calls placed by an appellant from jail to be authenticated by testimony that the calls were associated with an inmate's SPN number and retrieved from a system that records calls. See, e.g., Diamond v. State, 496 S.W.3d 124, 142 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd). In addition, testimony from a law enforcement officer that he was familiar with the appellant's voice from a prior interview and that he recognized it in a recorded call has also been held to be sufficient to authenticate a recorded jail call. See id. In addition, "[alternate grounds to authenticate the identity of a telephone caller include self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged, internal patterns and other distinctive characteristics, and disclosure of knowledge and facts known peculiarly to the caller." Mosley v. State, 355 S.W.3d 59, 69 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd).
Here, the audio recording was not directly connected to Garcia's SPN number. However, the evidence showed that it was made from the JPC at a time when Garcia was at the JPC. It was made to a phone number that was later called using Garcia's SPN. See Diamond, 496 S.W.3d at 142. The recording itself includes a self-identification because it says the call is from "Josh." See Mosley, 355 S.W.3d at 69. Other facts mentioned by the caller relate to the alleged crime. See id. The caller refers to a white Tahoe many times and warns the recipient of the call not to be in downtown Houston "in that white thing." See id. The caller refers to two plainclothes police officers and being charged with evading arrest. The caller describes a car chase and says that he was apprehended near "Hardy and the Beltway." Testimony from law enforcement officers included in-court identification of Garcia as the person who got out of a white Tahoe, drove the F-350 on a car chase from downtown Houston to the Hardy Tollway between I-610 and the Beltway, and was arrested for and charged with evading arrest.
Officer Torres testified that she spoke with Garcia after his arrest and refreshed her recollection of his voice by watching her body camera footage with audio before listening to the recorded jail call. She testified that she recognized Garcia's voice on the recorded call. See Diamond, 496 S.W.3d at 142.
The trial court concluded that this evidence was sufficient to support a reasonable jury determination that the recorded call was made by Garcia and therefore authentic. See Tienda, 358 S.W.3d at 638. We agree. We overrule Garcia's first issue.
Garcia's third issue contends that the audio recording had no relevance because it was not authenticated. See id. ("Evidence has no relevance if it is not authentically what its proponent claims it to be."). He further reasons that admission of such irrelevant evidence was contrary to Rules of Evidence 402 and 403. See TEX. R. EVID. 402 (Providing that relevant evidence is generally admissible); id. 403 (providing that trial court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice). We have already detailed the evidence on which the jury could rely to find that Garcia made the recorded jail call. Garcia has made no other argument about why the call was unfairly prejudicial. We overrule Garcia's third issue.
III. The recorded jail call did not violate Garcia's rights under the Confrontation Clause of the Sixth Amendment.
In his second issue, Garcia argues that admission of the recorded jail call violated his constitutional right to confront witnesses against him. See U.S. Const. amend. VI. In particular, Garcia argues that the recorded call included two parties and, while the State "suggested" that Garcia was one party, the other person was never identified. He further argued that the "recording clearly resulted in statements made by an unidentified person that would be made available for use at a trial," and was, therefore, testimonial. Garcia thus argued that he should have had the opportunity to cross-examine the second speaker.
The Confrontation Clause of the Sixth Amendment guarantees the accused the right to confront the witnesses against him. U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 42 (2004); Molina v. State, 632 S.W.3d 539, 543 (Tex. Crim. App. 2021). "The main purpose behind the Confrontation Clause is to secure for the opposing party the opportunity of cross-examination because that is 'the principal means by which the believability of a witness and the truth of his testimony are tested.'" Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App. 2016) (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)). The Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial, unless the witness is unavailable to testify, and the defendant has had a prior opportunity for cross-examination. See Davis v. Washington, 547 U.S. 813, 821 (2006) (citing Crawford, 541 U.S. at 51-54). When a defendant raises a Confrontation Clause objection, the State must establish that the evidence does not contain testimonial hearsay statements or that it does, but such statements are nevertheless admissible. De La Paz v. State, 273 S.W.3d 671, 680-81 (Tex. Crim. App. 2008).
We review de novo a trial court's constitutional legal rulings, including whether an absent witness's statement is testimonial. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). Our review focuses on the primary basis for the statement. Davis, 547 U.S. at 822. Testimonial statements include those "that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford, 541 U.S. at 51-52 (citing Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae); see Wall, 184 S.W.3d at 735. Statements are nontestimonial when made "under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Davis, 547 U.S. at 822. They are testimonial when "the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id.; see Molina v. State, 632 S.W.3d 539, 543 (Tex. Crim. App. 2021).
Multiple courts have found that recorded jail calls are not per se testimonial simply because the participants knew the call was recorded. E.g., Nicholls v. State, 630 S.W.3d 443, 450-51 (Tex. App.-Eastland 2021, pet. ref'd) (holding that statements made by recipient of defendant's recorded jail call were not testimonial because record did not indicate that statements were made for "the primary purpose of creating an out-of-court substitute for trial testimony"); United States v. LeBeau, 867 F.3d 960, 980-81 (8th Cir. 2017) (holding that telephone call from jail does not implicate Confrontation Clause unless primary purpose was testimonial; defendant's knowledge that call was recorded did not make it testimonial because purpose was to further crime not to make record for criminal prosecution); United States v. Jones, 716 F.3d 851, 856 (4th Cir. 2013) (holding that recorded jail telephone call was not testimonial despite fact that participants knew it was recorded because neither demonstrated intent to "bear witness" against defendant). At least one court has held that statements on a recorded jail call did not implicate the Confrontation Clause because they were offered only to provide context for the defendant's recorded statements. United States v. Hicks, 575 F.3d 130, 143 (1st Cir. 2009) (holding that, when defendant placed call from jail, statements made by recipient of call did not implicate Confrontation Clause because they were offered to provide context for defendant's statements not for truth of matter asserted).
Here, Garcia asserts that the statements made by the unidentified person on the recorded jail call were "clearly testimonial," but he does not explain why. The State offered the statements of the unidentified participant in the phone conversation not for the truth of the matter asserted but to provide context for Garcia's statements, which compromised most of the recorded conversation. See id. In addition, the recorded conversation included statements by Garcia warning the other participant not to be in "that white thing" or go to downtown. Nothing in the recorded statements indicated an intention to create a recording for use in a criminal prosecution, and the mere fact that the participants in the call were aware that it was being recorded is alone insufficient to make the statements testimonial in nature. See Nicholls, 630 S.W.3d at 450-51; LeBeau, 867 F.3d at 980-81; Jones, 716 F.3d at 856. We conclude that the statements in the recorded jail call that were made by the unidentified speaker are not testimonial and do not implicate the Confrontation Clause. We overrule Garcia's second issue.
Modification of Judgment
Finally, the trial court's judgment does not accurately comport with the record in this case. The judgment states that Garcia "pleaded true" to both the 1st and 2nd enhancement paragraphs. The reporter's record shows that Garcia pleaded "not true" to both enhancement paragraphs.
"An appellate court has the power to correct and reform a trial court judgment 'to make the record speak the truth when it has the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require.'" Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.- Dallas 1991, pet. ref d)). Although neither party has addressed the inconsistency between the trial court's written judgment and the record, our authority to correct an incorrect judgment does not depend on a request by the parties. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Dromgoole v. State, 470 S.W.3d 204, 226 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd); see also Asberry, 813 S.W.2d at 529-30 ("The authority of an appellate court to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court.").
Accordingly, we modify the portion of the trial court's judgment that states "pleaded true" beside both "1st Enhancement Paragraph" and "2nd Enhancement Paragraph" to state "pleaded not true" beside both "1st Enhancement Paragraph" and "2nd Enhancement Paragraph."
Conclusion
We modify the judgment of the trial court, and, as modified, we affirm the judgment of the trial court. See TEX. R. APP. P. 43.2(B).