John David Lopez, II v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

11th Court of Appeals

Eastland, Texas

Opinion

John David Lopez, II

Appellant

Vs. No. 11-02-00012-CR -- Appeal from Palo Pinto County

State of Texas

Appellee

The jury convicted John David Lopez, II of the offense of delivery of methamphetamine weighing 1 gram or more but less than 4 grams. The jury assessed his punishment at confinement for 20 years and a $10,000 fine. We affirm.

Appellant presents two points of error. In the first point, appellant attacks the legal sufficiency of the evidence, arguing that the evidence is insufficient to prove beyond a reasonable doubt that he committed the offense. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).

The record shows that the charge against appellant resulted from an undercover drug purchase. Deputy Anthony R. Bilbay, a member of the Cross Timbers Narcotics Task Force, testified that he and a confidential informant went to appellant=s residence to purchase narcotics. Both were equipped with recording devices. They contacted appellant at the house and went inside. The confidential informant asked if he could buy a fourth of an ounce of methamphetamine. Appellant responded that he would have to ask his dealer, so they waited for the dealer to arrive. After leaving the room to discuss matters with the man who had arrived, appellant returned and explained that he could not sell that quantity and that he would only sell half-gram amounts for $50. Deputy Bilbay told appellant that he would take two halves for $100. Appellant went back to the bedroom and then came back and handed Deputy Bilbay a baggie containing an off-white powdered substance. Deputy Bilbay paid appellant. The substance was tested and was determined to be methamphetamine weighing 1.06 grams, including any adulterants and dilutants.

The field supervisor for the task force, Officer Rod Price, also testified about the events surrounding the drug transaction. He observed Deputy Bilbay and the confidential informant enter appellant=s residence, and he conducted surveillance while they were inside. The testimony indicated that the informant=s only role in this controlled buy was to introduce Deputy Bilbay to appellant.

An audiotape of the transaction was also introduced into evidence. The audiotape contains a lot of static but essentially tracks Deputy Bilbay=s testimony. At one point on the audiotape after the transaction, Deputy Bilbay inadvertently referred to appellant as AJohn Perez.@ However, before and after the inadvertent reference, Deputy Bilbay stated on the audiotape the correct name of AJohn Lopez.@ The audiotape was not transcribed or played for the jury. Furthermore, Deputy Bilbay identified appellant in court as the person from whom he purchased the methamphetamine.

We hold that the evidence is sufficient to support appellant=s conviction. The first point of error is overruled.

In his second point of error, appellant argues that the trial court erred by admitting into evidence the audiotape that was made from an electronic transmitting device worn by Deputy Bilbay. At trial, appellant objected that the predicate had not been laid that any voices on the audiotape were identifiable.

We must determine whether the trial court abused its discretion in admitting the audiotape. Angleton v. State, 971 S.W.2d 65, 67 (Tex.Cr.App.1998). Under TEX.R.EVID. 901(a), an item is properly authenticated or identified if the evidence is Asufficient to support a finding that the matter in question is what its proponent claims.@ A recording may be authenticated by voice identification. TEX.R.EVID. 901(b)(5). Deputy Bilbay testified that he was familiar with the operation of the recording equipment, that he had listened to the audiotape, and that the audiotape accurately reflected what transpired during the transaction between Deputy Bilbay and appellant. Deputy Bilbay also testified that he could identify the voices on the audiotape and that the voices on the audiotape were his, the confidential informant=s, and appellant=s.

In support of his contention, appellant relies on Leos v. State, 883 S.W.2d 209 (Tex.Cr.App.1994). The facts of that case are distinguishable. In Leos, the proponent of the audiotape was not able to identify any of the voices on the audiotape other than the undercover operatives and the informer. Neither the defendant=s nor the coconspirators= voices were identified. Leos v. State, supra at 211. In the present case, however, Deputy Bilbay testified that he could identify the voices as belonging to him, the confidential informant, and appellant. We hold that the trial court did not abuse its discretion in admitting the audiotape over appellant=s objection to the lack of predicate. See Jones v. State, 80 S.W.3d 686 (Tex.App. - Houston [1st Dist.] 2002, no pet=n); Brooks v. State, 921 S.W.2d 875 (Tex.App. - Houston [14th Dist.] 1996), aff=d, 957 S.W.2d 30 (Tex.Cr.App.1997).

Moreover, the error, if any, in admitting the audiotape is not reversible error under the circumstances in this case. The audiotape was not played for the jury. Although the prosecutor informed the jurors that the audiotape was in evidence and that they could listen to it, the record indicates that they did not. The jury returned with a verdict after being recessed for deliberations only 11 minutes, whereas the evidence indicates that the audiotape was A15 to 20 minutes@ long. After reviewing the audiotape, which was 15 minutes long, we have concluded that any error in admitting the audiotape did not affect appellant=s Asubstantial rights@ and Amust be disregarded@ under TEX.R.APP.P. 44.2(b). Appellant=s second point of error is overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

October 31, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.