Timothy Ray Bridges v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

Opinion filed December 15, 2005

   In The

   Eleventh Court of Appeals

__________

   No. 11-03-00396-CR

__________

   TIMOTHY RAY BRIDGES, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. 12,249

O P I N I O N

Timothy Ray Bridges appeals his conviction by a jury of the offense of aggravated robbery. The jury assessed his punishment at ninety-nine years in the Texas Department of Criminal Justice, Institutional Division, and a fine of $10,000. Bridges contends in six issues that (1) the evidence was insufficient to support his conviction because several witnesses recanted their prior statements, (2) the trial court erred by admitting into evidence a videotape that was not properly authenticated, (3) the trial court erred by admitting into evidence a machete without a showing of a proper chain of custody, (4) the trial court improperly refused him the opportunity to show various versions of the crime given by various witnesses, (5) the trial court erred by admitting into evidence autopsy and other photographs that constituted cumulative and prejudicial evidence, and (6) the trial court erred by admitting into evidence hearsay information concerning his guilt. We affirm.

Bridges contends in issue five that the evidence is insufficient to support his conviction because several witnesses at trial recanted prior statements in which they had implicated him in the aggravated robbery for which he was being tried. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a 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). In a factual sufficiency review, we view all of the evidence in a neutral light and set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004).

Evidence presented showed that Brent Bellah brutally murdered a convenience store clerk during a robbery. He was armed with a machete. Money taken from the robbery was found at the residence of Jennifer Fikes after Bridges had pointed out where it was and had indicated that he had received it from Bellah. A cash register taken in the robbery was found in a vehicle located on premises rented by Bridges. One witness testified that he heard Bridges telling Bellah that he was stupid for not covering his face and, if he had Acovered his face like he had told him to, that neither one of them would even be there.@ The same witness indicated that Bridges asked Bellah if he had told anyone about his involvement. Another witness testified that, when he asked Bridges about the murder, Bridges told him that Bellah had been a good soldier who had sacrificed himself to the cause. He related that Bridges said that the cause was Acause he told him to.@ Another witness testified that she heard Bridges and Bellah planning the robbery before it occurred and later heard Bridges tell Bellah that he had done a good job. The witness indicated that she also heard Bridges say that he had planned the whole thing.

Bridges contends that the evidence is insufficient to support his conviction because several witnesses recanted prior statements implicating him. Both Bellah and William Christopher Ruff recanted prior statements they had given to police implicating Bridges. However, none of the evidence that we have outlined above was recanted. We hold that the evidence is legally and factually sufficient to support Bridges=s conviction. In arguing that the evidence is insufficient to support his conviction, Bridges relies on the case of Greene v. Massey, 437 U.S. 19 (1978). However, that case does not relate to a determination of whether evidence was sufficient to support a conviction. Id.

Although not pertinent to the issue as stated, Bridges suggests in his argument with respect to this issue that he was harmed when the trial court entered into evidence the prior statements of Bellah and Ruff. The record reflects that no objection was made either to the admission of Bellah=s statement or to Ruff=s testimony concerning his implicating Bridges in the statement he gave police. We overrule issue five.

Bridges urges in issue one that the trial court erred by admitting over his objection the videotape taken of the robbery of the convenience store because the investigating detective did not properly authenticate the tape. Detective Mike McAllester, a lieutenant and commander of the Criminal Investigations Unit of the Mineral Wells Police Department, testified that, after the robbery and murder at the convenience store, he secured the store=s security tape. He indicated that he had watched and listened to the tape; that it was prepared on a recording device capable of making an accurate audio and visual recording; that it was an accurate copy of the conversation or the events that took place as described on January 4, 2001; that the pictures and events contained in the videotape fairly and accurately reflect the events shown on the tape; and that the recording had not, to his knowledge, been altered in any manner. Bridges objected to the question as to whether the tape was prepared on a recording device capable of making an accurate audio and visual recording on the basis that the officer was not qualified to make that representation. The trial court overruled his objection. When the State offered four minutes of the videotape, State=s Exhibit No. 9, into evidence, Bridges objected on the basis of the rule of optional completeness and on the basis that he did not know which four minutes the State was offering. The trial court overruled the objection and admitted the portion of the tape that the State wanted to play before the jury. Bridges made no objection to the admission of State=s Exhibit No. 9 on the basis that it was not properly authenticated. Because his objection on appeal does not comport with his objection at trial, we hold that nothing is presented for review. Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App. 1990). In support of his contention under this issue, Bridges refers us to Edwards v. State, 551 S.W.2d 731 (Tex. Crim. App. 1977), which sets forth certain requirements for the admission into evidence of video recordings. Id. at 733. He contends that those requirements were not met; but, as noted, he did not make an objection to the admission of the videotape on that basis. We also note that Tex. R. Evid. 901, not Edwards, now governs the authentication of video recordings. Leos v. State, 883 S.W.2d 209, 211 (Tex. Crim. App. 1994). Bridges has made no contention, either at trial or on appeal, that the recording was not properly authenticated in accordance with Rule 901. We overrule issue one.

Bridges insists in issue two that the trial court erred by admitting a machete into evidence without a showing of a proper chain of custody. Detective McAllester testified that the machete in question, State=s Exhibit No. 22A, was the same machete that was found at the residence of Bellah and that it was the same machete that was transported to and received back from a crime lab, the Southwest Institute of Forensic Sciences in Dallas. He related that, when an item of evidence, such as the machete, is taken into evidence, it is logged, tagged, and placed in a secured evidence room until such time as it is needed for court or if it is needed to be taken to the crime lab for analysis. He stated that at no time is it ever available to anyone other than four detectives who have access to the room. Detective McAllester acknowledged that he did not know who transported the machete to the crime lab. The trial court admitted the machete into evidence, over Bridges=s objection that the chain of custody was not clearly shown from the time the State had the machete until the time of trial.

Tagging an item of physical evidence at the time of its seizure and then identifying it at trial based upon the tag is sufficient for admission barring any showing by the defendant of tampering or alteration. Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989). The chain of custody is conclusively proven if an officer is able to identify that he or she seized the item of physical evidence, put an identification mark on it, placed it in the property room, and then retrieved the item being offered on the day of trial. Id. Inasmuch as Bridges has presented us no evidence of tampering or alteration, the trial court did not abuse its discretion by admitting the machete into evidence. We overrule issue two.

Bridges asserts in issue three that the trial court erred by sustaining the State=s hearsay objection to a question relating to different versions of the crime presented by the witnesses at trial. Detective McAllester testified that Bellah had given more than one statement to him, which included two or three different versions of what had happened. When counsel for Bridges asked Detective McAllester if Bellah had told him that Ben Hernandez had made him do it, the trial court sustained the State=s hearsay objection. Bridges makes no argument that the question asked did not call for hearsay, nor does he rely upon any exception to the hearsay rule. His argument seems to be that, because the State was able to show through Bellah=s statement that Bridges had made him commit the robbery, he should be able to show through another statement by Bellah that it was Hernandez who made Bellah commit the robbery.

In order to preserve error with respect to the exclusion of evidence, the substance of the evidence excluded must have been made known to the court by offer or be apparent from the context within which the questions were asked. Tex. R. Evid. 103(a)(2); Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993). Bridges did not make known what Detective McAllester=s answer to his question would have been by making an offer of proof, and his answer was not apparent from the context within which the question was asked. Bridges relies on the case of Cruz v. State, 122 S.W.3d 309 (Tex. App.CHouston [1st Dist.] 2003, no pet.), but that case is distinguishable because Cruz=s counsel preserved the excluded testimony by means of a bill of exception. Id. at 312. We overrule issue three.

Bridges argues in issue four that the trial court erred by admitting autopsy photographs into evidence. We review the trial court=s decision to admit or exclude evidence by an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997). We will reverse the trial court only when its decision on the admissibility of evidence lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

Dr. Jeffrey Barnard testified that he is the chief medical examiner for Dallas County and the director of the Southwestern Institute of Forensic Sciences. He said that his office performed the autopsy of the victim in this case based on a request from someone in Palo Pinto County. He identified three pictures, State=s Exhibit Nos. 24, 25, and 26, as pictures of the types of injury that were inflicted on the victim. He related that the pictures would assist him in explaining to the jury the types of injuries and what would cause those types of injuries. The trial court admitted the photographs into evidence over Bridges=s objection that they were cumulative, more prejudicial than probative, and inflammatory. The photographs depict severe cuts on the victim=s hand, including one photo showing amputated fingers and severe cuts on the victim=s face. The decision to admit or exclude photographic evidence is generally left to the sound discretion of the trial court. Prible v. State, No. AP74487, 2005 WL 156555 (Tex. Crim. App. Jan. 26, 2005). In deciding whether photographs are unfairly prejudicial, we must also consider the following factors: the number of photographs, the size, whether they are in color or black and white, whether they are gruesome, whether any bodies are clothed or naked, and whether a body has been altered by autopsy. Id.

As previously noted, Bridges objected to three photographs. These photographs are in color. They do not appear in our record to exceed eight inches by ten inches. Due to the nature of the injuries inflicted on the victim, the pictures might be considered by some to be gruesome but are not gruesome for the purpose of this analysis because of their clinical nature. Id. at *10. The pictures do not depict whether the body of the victim is clothed, and the body as depicted in the photographs does not appear to have been altered by autopsy. Over similar objections by Bridges, the trial court had previously admitted into evidence other photographs. The photographs that are the subject of this issue on appeal depicted certain defensive-type wounds not shown in the other photographs that were admitted and depicted additional views of the victim and the crime scene that were not shown in the other photographs. They were not, therefore, cumulative of other evidence. We also hold that their probative effect was not substantially outweighed by the danger of unfair prejudice and that the photographs were not inflammatory. Accordingly, we hold that the trial court did not abuse its discretion in admitting these photographs into evidence.

Furthermore, given the fact that the photographs were not particularly gruesome due to their clinical nature; given the comparison of these photographs with other evidence properly admitted; given the fact that the State only generally referred to photographs in its jury argument; given the fact of the limited number of the photographs admitted; and given the fact that the photographs had nothing to do with the disputed issue at trial concerning whether Bridges had directed Bellah in committing the murder, we hold that the admission of these photographs did not affect Bridges=s substantial rights. See id. Bridges relies upon two cases: Whaley v. State, 367 S.W.2d 703 (Tex. Crim. App. 1963), and Cavazos v. State, 365 S.W.2d 178 (Tex. Crim. App. 1963). The basis of both of these cases was set aside in Martin v. State, 475 S.W.2d 265, 268 (Tex. Crim. App. 1972). Unlike Prible, neither case contained any harm analysis. We overrule issue four.

Bridges insists in issue six that the trial court erred by admitting hearsay information about his guilt. Detective McAllester testified that he met with someone named Ruff in the jail who had information about the incident in question. Immediately after Detective McAllester testified that Ruff told him he knew Bridges, Bridges objected to the answer on the basis of hearsay; but the trial court overruled the objection. Detective McAllester subsequently testified, without objection, that Ruff told him that he knew something about Bridges=s involvement in the convenience store killing; that Ruff told him that Bridges had told Ruff that he had planned the robbery; that Bridges had told Ruff that he had promised to give Bellah something if Bellah robbed the convenience store; that Bridges told Ruff that he had provided the machete to Bellah with which to commit the robbery; that Bridges told Ruff he had sent Bellah to rob the store and told him not to leave any witnesses; and that Bridges had told Ruff that Bellah had returned from the robbery with blood on him and he gave the money to Bridges. In the absence of an objection, nothing is presented for review. Little v. State, 758 S.W.2d 551, 563 (Tex. Crim. App. 1988). Bridges relies on Garrett v State, 641 S.W.2d 232 (Tex. Crim. App. 1981). We find that case to be distinguishable. In Garrett, several timely hearsay objections were overruled, and a running objection based on hearsay was overruled. Id. at 234. In the case at bar, while Bridges asserts that there was a hearsay objection, our examination of the record reflects that the question was rephrased following his initial hearsay objection and that his second hearsay objection was untimely in that it was not made until the question had been answered. As previously noted, the bulk of the testimony of which Bridges complains was received into evidence without any hearsay objection at all. We overrule issue six.

The judgment is affirmed.

PER CURIAM

December 15, 2005

Do not publish. See Tex. R. App. P. 47.2(b).

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

McCall, J., and Hill, J.[1]

[1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.