Nos. 05-07-00164-CR, 05-07-00165-CR, 05-07-00166-CR, 05-07-00167-CR, 05-07-00168-CR, No. 05-07-00169-CR
Opinion Filed June 12, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause Nos. 054284, 054285, 055435, 055436, 055437, 055438.
Before Justices MOSELEY, FRANCIS, and LANG.
Opinion By Justice LANG.
Craig Alan Monroe appeals the trial court's judgments. In cause numbers 05-07-00164-CR and 05-07-00165-CR, Monroe pleaded guilty to unlawful possession with intent to deliver cocaine in an amount of four grams or more, but less than two hundred grams, and the jury assessed his punishment at ten years of imprisonment and a $10,000 fine in each case. In cause numbers 05-07-00166-CR and 05-07-00169-CR, Monroe pleaded guilty to unlawful possession with intent to deliver methamphetamine in an amount of four grams or more, but less than four hundred grams, and the jury assessed his punishment at ten years of imprisonment and a $10,000 fine in each case. In cause number 05-07-00168-CR, Monroe pleaded guilty to unlawful possession with intent to deliver methamphetamine in an amount of four grams or more, but less than two hundred grams, and the jury assessed his punishment at ten years of imprisonment and a $10,000 fine. In cause number 05-07-00167-CR, Monroe pleaded guilty to unlawful possession of marijuana in an amount of five pounds or less, but more than four ounces, and the jury assessed his punishment at two years of confinement and a fine of $10,000. In his sole issue on appeal, Monroe argues the trial court erred when it overruled his objection and admitted the videotape of his police interview and confession. We conclude the trial court did not err when it overruled Monroe's objection and admitted the videotape of his police interview and confession. The trial court's judgments are affirmed.
Monroe waived his right to be accused by indictment and was charged by information. See Tex. Code Crim. Proc. Ann. art. 21.20 (Vernon 1989). Although section 481.112(e) specifies the punishment when the amount 200 grams or more, but less than 400 grams, both the information and judgment state Monroe was charged and convicted of unlawful possession with intent to deliver methamphetamine in an amount of 4 grams or more, but less than 400 grams. However, the parties do not raise this issue on appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Sgt. Jason Jeffcoat received information from an informant that Monroe was delivering Ecstacy. The informant introduced Jeffcoat, who was undercover, to Monroe. The meeting occurred in a vehicle and Jeffcoat attempted to buy some Ecstacy, but Monroe became suspicious and did not sell him any. Approximately one month later, Jeffcoat had a second informant contact Monroe. On three occasions, that informant purchased either Ecstasy or cocaine from Monroe. On February 4, 2005, in a separate incident, Monroe was arrested. Because a large amount of narcotics were seized, Jeffcoat was contacted. Jeffcoat interviewed Monroe and recorded their conversation. II. ADMISSION OF VIDEOTAPED POLICE INTERVIEW AND CONFESSION
In his sole issue on appeal, Monroe argues the trial court erred when it overruled his objection that the State did not "furnish" a copy of the videotape of his police interview and confession twenty days before trial, and admitted the videotape into evidence. He argues there is nothing in the record showing when the State made defense counsel aware of the videotape. The State responds that Monroe failed to preserve his complaint for appeal because he argued only that he was not given a copy of the videotape, not that the videotape was made available later than twenty days before trial. Also, the State argues it provided access to the videotape and defense counsel did not contradict the State's assertions. Further, the State contends Monroe has failed to show harm, i.e., the videotape was prejudicial, beyond arguing that "the jury might not have found [Monroe] was not always cooperative with law enforcement." A. Standard of Review
An appellate court reviews a trial court's decision to admit or exclude evidence for an abuse of discretion. See Pierce v. State, 234 S.W.3d 265, 271 (Tex.App.-Waco 2007, pet. ref'd) (discussing article 38.22). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. See Walter v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007). B. Applicable Law
The admissibility of a defendant's oral statements is governed by article 38.22, section 3 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon 2005). Article 38.22, section 3(a), shall be strictly construed and courts may not interpret it as making a statement admissible unless all requirements have been satisfied by the State. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(e). According to article 38.22, section 3(a)(5), a defendant's recorded oral statements, made as a result of a custodial interrogation, are not admissible unless, "not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article." Id. art. 38.22, § 3(a)(5). However, the State is not required to "give" defense counsel a copy of any recorded statements; rather, it is required to "provide access" to the statements. Lane v. State, 933 S.W.2d 504, 515-17 (Tex.Crim.App. 1996); see also McClenton v. State, 167 S.W.3d 86, 90 (Tex.App.-Waco 2005, no pet.); Tinker v. State, 148 S.W.3d 666, 672 (Tex.App.-Houston [14th Dist.] 2004, no pet.). As long as defense counsel is informed of the existence of the recording and is permitted reasonable access to a copy, the purpose of article 38.22, section 3(a)(5) has been met. Lane, 933 S.W.2d at 516; see also McClenton, 167 S.W.3d at 90; Tinker, 148 S.W.3d at 672. The requirements of article 38.22, section 3(a)(5) have been satisfied where: (1) defense counsel stated he was appointed as counsel six months before trial, he had not been told copies of the recorded statement were available, he had the investigating officer's report that referred to the recorded statements two or three months before trial, two weeks before trial he re-read the officer's report and realized there were two tapes, and eight days before trial he visited the district attorney's office and obtained copes of the tapes; and (2) the State informed the trial court copies of the tapes were made six weeks before trial, placed in the district attorney's file, and available for defense counsel, the district attorney's office had an "open-file" policy, the file had been open since the case was filed, he furnished defense counsel with the written offense report, and as far as the State knew, defense counsel had knowledge of the tapes and their availability. See McClenton, 167 S.W.3d at 90. Similarly, the requirements of article 38.22, section 3(a)(5) have been satisfied where: (1) defense counsel admitted he was aware of the recorded statement and acknowledged he was given free access to his client's file, but claimed the recorded statements were not in the file; (2) the State responded the district attorney's office was given a copy of the tape fourteen days after the offense, defense counsel had access to the file since that time, the district attorney's office keeps copies of tapes in a separate filing cabinet, not in the individual files, and defense counsel could have listened to the tape any time after the district attorney's office was given the tape; and (3) there was nothing in the record indicating defense counsel requested or was denied access to the tape recorded statements. See Tinker, 148 S.W.3d at 672-73. C. Application of the Law to the Facts
During the hearing on punishment, the only exhibit the State offered into evidence was the videotape depicting Monroe's police interview and confession. Monroe objected, arguing he was not furnished a copy of the recording and he was not provided the recording twenty days before trial. The State responded that Lane does not require them to serve a copy of the recording on the defense. Instead, Lane requires the State to notify the defense that a recording exists and to provide reasonable access to that recording. Also, the State argued a discovery agreement signed by Monroe's counsel indicated there were video recordings, which were available, and the police reports that were provided to Monroe in discovery mentioned the video. We note the State's response does not indicate the date when the discovery agreement was executed or the date when the police reports were given to defense counsel. Further, the discovery agreement is not in the record. While it would have been preferable for the State to specify when they provided defense counsel with the information relating to the video recording, defense counsel did not controvert the State's argument that the discovery agreement and police reports mentioned the video recording, or argue he received these documents later than twenty days before trial. Accordingly, we conclude the record indicates the State met its burden under article 38.22, section 3(a)(5) and the trial court did not abuse its discretion when it denied Monroe's objection and admitted the videotape into evidence because the trial court's decision was not outside the zone of reasonable disagreement. Monroe's sole issue on appeal is decided against him. III. CONCLUSION
The trial court did not err when it overruled Monroe's objection and admitted the videotape of his police interview and confession. The trial court's judgment is affirmed.