No. 05-10-00083-CR
Opinion issued April 20, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-58889-RV.
Before Justices O'NEILL, FITZGERALD, and LANG.
Opinion By Justice FITZGERALD.
Appellant Joshua Corey Lawrence pleaded guilty to aggravated robbery with a deadly weapon. The issue of punishment was tried to the bench. The trial judge sentenced appellant to 60 years' imprisonment. In two related issues, appellant asserts that the trial judge erred by admitting into evidence audio recordings of certain telephone calls appellant allegedly made from jail and that the trial judge erred by testifying to the authenticity of the recordings. We affirm.
I. Background
The evidence adduced during the sentencing hearing showed that appellant participated in a robbery in June 2008. Appellant's accomplice selected the victim, a Hispanic man, essentially at random. Although the victim offered no resistance, appellant shot the victim almost immediately, then shot him twice more while he was lying on the ground. Almost two months later, appellant turned himself in to the police. He pleaded guilty to aggravated robbery with a deadly weapon. During appellant's sentencing hearing, the State called Dallas Police Officer Craig Reddon as a witness. During Reddon's testimony, the State offered into evidence exhibit 26, which was a CD purportedly containing audio recordings of some telephone conversations appellant participated in while he was in jail. Appellant made many objections to exhibit 26, one of which was that the State had not shown that appellant was actually a participant in any of the conversations on the CD. At first the judge sustained the objection, and he invited the State to lay a predicate as to the identification of appellant's voice. After some additional discussion with the attorneys, and without hearing any additional evidence, the judge then overruled the objection and admitted exhibit 26 based on the State's representation that appellant identified himself by name in one of the recorded conversations that would be played. The judge stated that he would then be able to identify and recognize appellant's voice in other conversations. Some of the recorded conversations were played during the hearing. The complainant also testified at the sentencing hearing. He testified that he was paralyzed from mid-chest down as a result of the shooting, and he testified to the severe and traumatic effect his injuries had had on his life. The complainant's wife also testified about the crime and its effect on their family. At the conclusion of the hearing, the judge sentenced appellant to 60 years' confinement in the penitentiary. II. Analysis
In his first issue, appellant argues that the trial judge erred by admitting the CD of jailhouse telephone conversations because it was not adequately authenticated. In his second issue, appellant argues that the trial judge erred by supplying testimony to authenticate the CD in violation of Texas Rule of Evidence 605, which forbids the presiding judge from testifying as a witness. A. Standard of review
We review the trial judge's ruling on the admissibility of evidence for abuse of discretion. Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). Thus, we uphold the ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. Id. B. Admissibility of recorded conversations 1. Authentication
In his first issue, appellant argues that the trial judge abused his discretion by admitting the CD of recorded conversations because it was not adequately authenticated. "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); see also Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). Rule 901(b) provides a nonexclusive list of methods for authenticating or identifying evidence. Angleton, 971 S.W.2d at 67. For example, the rule provides that evidence can be authenticated or identified by "contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." Tex. R. Evid. 901(b)(4). In a more specific example, the rule provides that a voice can be identified "by opinion based upon hearing the voice at anytime under circumstances connecting it with the alleged speaker." Tex. R. Evid. 901(b)(5). "The trial judge does not abuse his or her discretion in admitting evidence where he or she reasonably believes that a reasonable juror could find that the evidence has been authenticated or identified." Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007) (footnote omitted). When the State offered exhibit 26 into evidence, appellant objected that the State had failed to authenticate the CD with evidence that appellant's voice was one of the voices in the recorded conversation. Appellant had previously stipulated that the recordings were in fact recordings of jailhouse telephone conversations. According to the judge's statements on the record, he admitted the CD based on the State's representation that appellant identified himself by name in one of the recordings. The judge reasoned that this would allow him to recognize appellant's voice and distinguish it from the other voices on the recordings. But we are not limited to this reasoning; we may affirm based on any theory of admissibility applicable to the case and reasonably supported by the record. See Brito Carrasco, 154 S.W.3d at 129. We conclude that appellant's voice was adequately authenticated and that the trial judge did not abuse his discretion by admitting the CD. When played on a computer, the CD shows the inmate's name as "Lawrence, Joshua Corey," and it shows the inmate's ID number as 2730786. State's exhibit 27, which is appellant's AIS book-in sheet, shows appellant's AIS number as 2730786. State's exhibit 27 was admitted into evidence without objection. Moreover, exhibit 27 lists appellant's "Current Bookin No." as 08060682. In one of the conversations recorded on exhibit 26, the caller identifies his book-in number as 08060682. Thus, the contents of exhibit 26, in conjunction with exhibit 27, tend to identify appellant as the caller in the conversations recorded in exhibit 26. See Tex. R. Evid. 901(b)(4). Moreover, appellant's expert witness provided some testimony that identified appellant's voice on the recording: THE COURT:One second, Dr. Compton, you spent much time interviewing the defendant. Would you be able to tell which voice[] on the recording was the defendant and which was the other person? THE WITNESS:Vaguely, yes, but it was difficult to differentiate sometimes. But the deeper voice, I believe, is the defendant. This evidence further identified appellant's voice in the recorded conversations. See Tex. R. Evid. 901(b)(5). The test for abuse of discretion in this context is whether a trial judge could reasonably believe that a reasonable juror could find that appellant's voice had been identified in the recorded conversations. See Druery, 225 S.W.3d at 502. Based on the foregoing evidence identifying appellant's voice, we conclude that the trial judge did not abuse his discretion by admitting exhibit 26. 2. Judge as witness
In his second issue, appellant argues that the trial judge violated Texas Rule of Evidence 605 by testifying as a witness in support of the authenticity of exhibit 26. Rule 605 provides, "The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." Tex. R. Evid. 605. Appellant argues that the judge violated Rule 605 by "testifying that the voice on the recordings . . . belonged to Appellant." The State contends that the judge did not testify. According to the State, Texas Rule of Evidence 104(a) obliged the judge to make a preliminary determination of whether exhibit 26 had been adequately authenticated, and the judge ruled-not testified-that it had. The question is whether the judge made statements of fact that are the functional equivalent of witness testimony, which violate the rule, or that are essential to the exercise of some judicial function, which do not. See Hammond v. State, 799 S.W.2d 741, 746 (Tex. Crim. App. 1990) ("`The question should be whether the judge's statement of fact is essential to the exercise of some judicial function or is the functional equivalent of witness testimony.'") (quoting 27 Wright Gold, Federal Practice and Procedure: Federal Rules of Evidence § 6063, at 353 (1990)). We have examined each page of the reporter's record that appellant cites in support of his position, and we conclude that the trial judge did not violate Rule 605. First, appellant refers us to the following statements by the trial judge: Back on the record, it's my understanding, Mr. Ortiz, that you are representing to the Court that one of the recordings that you intend to play, the defendant identifies himself by name. And from that point forward, I will be able to compare the voice that is identified with the other voices to make a determination as to whether or not they are the defendant. This passage contains no statements of fact, but only an explanation of the judge's analysis of the authentication objection raised by appellant. It did not constitute judicial testimony. Later in the sentencing hearing, the attorneys briefly discussed whether further evidence of authentication was necessary or appropriate, and the trial judge said the following: No, I think that was the-once she told us that he spoke his name and I could hear that it was him and I could hear the voice and I could compare it to the other voice, that's no longer an issue in the case. We conclude that this passage cannot reasonably be interpreted as testimony by the trial judge in support of the authenticity of exhibit 26. Rather, the judge merely recounted what he had heard on the recording without injecting any new facts into the proceeding, and he reiterated his ruling admitting the exhibit by stating that authentication was "no longer an issue in the case." Finally, appellant refers us to this passage: All right, Mr. Ortiz, if you would, please, restrict your questions to the portion of the tape that is-that contains the defendant's voice. If you need to talk about what the other person or persons are saying, please identify that and I will instruct the witness she may not consider that portion for any purpose, other than the context for the conversation. At that point, the judge had already admitted exhibit 26, concluding that appellant's voice had been adequately identified. In this passage, the judge did not testify to the identity of a speaker in the recording but repeated his prior ruling that a voice had been adequately identified as appellant's. Judicial rulings and explanations of judicial rulings are not testimony. See Medina v. State, No. 08-01-00430-CR, 2003 WL 22159043, at *4 (Tex. App.-El Paso Sept. 18, 2003, pet. ref'd) (mem. op., not designated for publication) (rulings on evidence are not testimony); see also Hammond, 799 S.W.2d at 746 (statements in furtherance of essential judicial functions are not testimony). The trial judge did not testify in violation of Rule 605. We resolve appellant's second issue against him. C. Harmless error
Alternatively, even if the trial judge erred by admitting exhibit 26, we conclude that the error was harmless. Appellant concedes that any error in this case was nonconstitutional error. Thus, we consider whether the alleged error affected appellant's substantial rights. See Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if, after reviewing the record as a whole, the appellate court has fair assurance that the error did not influence the fact-finder or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). "We assess the injurious influence of evidence at the punishment phase by asking whether the defendant received a longer sentence as a result of the erroneously admitted evidence." Rowell v. State, No. 03-08-00451-CR, 2009 WL 1364351, at *5 (Tex. App.-Austin May 14, 2009, pet. ref'd) (mem. op., not designated for publication). We consider the other evidence admitted in the case, the nature of the evidence supporting the fact-finder's determination, the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla, 778 S.W.3d at 355. We may also consider the State's theory, any defensive theories, closing arguments, and whether the State emphasized the error. Id. at 355-56. First, we review the other evidence presented at sentencing. The State presented substantial evidence in favor of a lengthy sentence. Appellant's own expert witness testified that appellant's crime was "cold," "callous," and "without regard for human life." Appellant shot the victim even though the victim offered no resistance or provocation, and then he shot him two more times after he had fallen to the ground. The victim sustained life-threatening injuries and was left partially paralyzed and wheelchair-bound. Appellant's expert also acknowledged that appellant did not "articulate a strong feeling of remorse for the victim" when she interviewed appellant. Other evidence connected appellant to a street gang called the Northside Goons, or "NSG." The evidence included photographs of appellant with NSG tattoos and photographs of appellant with other members of the gang taken from appellant's MySpace web page. Officer Reddon testified that appellant was at or near the top of the gang. Other evidence showed that appellant had disciplinary problems at school and that he had been arrested for gun possession as a juvenile. Appellant argues that the evidence of the recorded conversations was harmful for the following reasons. First, he points out that although Officer Reddon could not connect the NSG gang to the commission of any crimes before appellant's arrest, some statements on the CD allegedly made by appellant suggested that the gang required new members to shoot someone in order to join the gang, and that some other gang members had gone to jail. Thus, the recorded conversations could have made appellant's gang membership seem more sinister than Officer Reddon's testimony alone did. Second, appellant points out that one of the conversations purports to show him talking about getting a teardrop tattoo under his eye. Officer Reddon testified, however, that such tattoos have a variety of meanings; they can mean that the wearer has killed somebody, or merely that the wearer has lost someone or spent time away from his family. The recorded reference to the teardrop tattoo, therefore, is not particularly prejudicial. Appellant next points out that in one recorded conversation, someone who was purportedly appellant imitated the accent of the robbery victim, who apparently appeared at a hearing relating to the recorded speaker's crime. This evidence, appellant argues, tended to show a lack of remorse on the speaker's part, and thus was harmful to appellant to the extent the trial judge assumed that he was the speaker. In another conversation, a speaker who was purportedly appellant said that he knew someone from whom he could get a "40" for twenty-five dollars, and the State suggested in questioning that the speaker was referring to a .40 caliber handgun. Finally, in another conversation, a speaker who was purportedly appellant said that he would not go back to prison and said something to the effect that he would "go out with a bang." These excerpts were played for appellant's expert witness, who agreed that they tended to show future dangerousness and a lack of acceptance of responsibility. We review the allegedly improper evidence not only in the context of the evidence as a whole, but also in the light of the closing arguments. Motilla, 778 S.W.3d at 355-56. In this case, the State's closing argument strongly emphasized the facts of appellant's crime, the innocence of the victim, and the crime's impact on the victim and his family. Although the State did mention some facts drawn from the recorded jailhouse conversations, those references were not a substantial part of the State's closing argument, and they served only to support the State's theory that appellant was not remorseful for his crime. We note that the State asked the trial court to render a life sentence. We conclude that the admission of the CD into evidence had at most only a slight effect on appellant's sentence and was therefore harmless. Many of the recorded conversations merely demonstrated that appellant was involved in the NSG gang, which was also established by other evidence. Although some of the conversations tended to show that appellant was not remorseful for his crime, appellant's own expert witness testified that she did not observe him to have "a strong feeling of remorse for the victim." Still other recorded conversations tended to show that appellant was not accepting responsibility for his behavior, and some contained statements indicating both homicidal and suicidal tendencies. But considering the other evidence of the viciousness of the crime and of appellant's gang membership, and the fact that the judge rendered a sentence of 60 years' imprisonment instead of the life sentence requested by the State, we have fair assurance that the evidence of the recorded conversations had no effect or only a slight effect on the trial judge's sentencing decision. We find support for our decision in the case of Epps v. State, 24 S.W.3d 872 (Tex. App.-Corpus Christi 2000, pet. ref'd). During the punishment phase of the trial, the trial court admitted certain letters allegedly written by Epps in jail. Id. at 878. Epps argued that there was no proof that he had written the letters and that they were prejudicial because of the profanity and gang jargon in the letters. Id. Even though the letters portrayed Epps as a callous, vulgar, and violent person, the court of appeals held that any error was harmless because the other evidence at punishment established the violent nature of the crime and Epps's apparent lack of remorse after the crime. Id. In the instant case, the evidence during appellant's sentencing hearing established that he had committed a violent crime against a random victim, that the victim of the crime came close to death and suffered permanent, disabling injuries, and that appellant's own expert witness did not observe any strong signs of remorse on appellant's part. We hold that the trial judge's admission of exhibit 26, if erroneous, was harmless. III. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.