Efrin Fidensio Covarrubias v. State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-00-102-CR

EFRIN FIDENSIO COVARRUBIAS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 31,390

O P I N I O N

Appellant Covarrubias appeals his conviction for murder, for which he was sentenced to 30 years in the Texas Department of Criminal Justice - Institutional Division.

Appellant and J. Ines Martinez (the deceased), were Mexican nationals who were working on the turkey farms near Aquilla. Appellant speaks no English. On the evening of February 6, 1999, appellant, the deceased, appellant s father Sefornio Covarrubias, and another were drinking and playing cards in a bunkhouse provided for workers on the turkey farms. Appellant and the deceased got into an argument over problems they had with each other ten years earlier, and went outside the house. Appellant said he would shoot Martinez and Martinez responded that appellant did not have the guts to do this. Appellant then walked a quarter of a mile to his uncle s house, borrowed a 22 caliber rifle, returned, and shot Martinez twice in the head at close range, killing him. The Hill County Sheriff s Department was notified that there had been a shooting near Aquilla and several deputies were dispatched to the location. They found Martinez dead and Deputy Davis made a video of the crime scene. The officers were told that a drive by shooter shot Martinez. The next morning, appellant and his father went to Waco, where appellant contacted Officer Ramiro and told him he had killed a man the night before. Appellant was detained and held for Hill County officers, who picked him up and returned him to the scene of the shooting, and then to the Sheriff s Department in Hillsboro. Deputy Davis made a video on the return to the scene, and also at the Sheriff s Department.

Appellant was indicted for murder and at trial, a jury found him guilty. He elected for the court to assess punishment, which sentenced him to 30 years in prison. The court further found that a deadly weapon was used in the commission of the offense.

Appellant appeals on three issues.

Issue 1: Whether the operator of the video camera was qualified to record the events depicted on the videotapes such that the contents of the videotapes could be relied upon to accurately depict the events which occurred at the time they were recorded.

Issue 2: Whether it was an abuse of discretion by the trial court in admitting the video tapes without a showing that the State had discharged its burden of showing that the requirements of Texas Rule of Evidence 901, Requirement of Authentication or Identification, were met.

Appellant contends that because Deputy Davis, who made the videotapes had received no formal training in operating a video, and because he had not checked the video camera prior to operating it, and because the date stamp on the videotape was a day earlier than the facts portrayed, that the trial court abused it discretion in admitting the videotapes depicting the scene, the visit back to the scene, and appellant s statements when taken into custody.

The standard for review of a trial court s ruling under the rules of evidence is abuse of discretion. Angleton v. State, 971 S.W.2d 65, 67(Tex. Crim. App. 1998) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939).

Rule of Evidence 901(a) states that 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.

Deputy Davis testified he used his own camera because the Sheriff Department s camera was broken, that he had learned to use his own camera by taking videos of his children and family; that the video here involved accurately depicted the information depicted; and that he had reviewed the tapes and nothing was altered or changed.

Deputy Davis identified the voices on the first two tapes as police officers and identified by name the voices on the third tape. His testimony demonstrated that he had used the equipment previously and was familiar with its operation. Appellant s objections went to the weight of the evidence and not the admissibility.

The trial court did act in accordance with guiding principles and thus did not abuse its discretion in holding Deputy Davis qualified to operate the video equipment and in admitting the videotapes into evidence.

Issues 1 and 2 and the contentions made thereunder are overruled.

Issue 3: Whether the videotape recorded in a foreign language without the simultaneous presentation of a certified transcript of the Spanish language portions of the videotapes should have been presented to the jury.

Appellant complains of the admission of the videotape containing Spanish language without providing a certified transcript in English or having one of the court appointed interpreters interpret the tapes for the jury.

To preserve error for appellate review, the complaining party must make a timely specific objection. The objection must be made at the earliest possible opportunity. The complaining party must obtain an adverse ruling from the trial court. Finally, the point of error on appeal must correspond to the objection made at trial. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).

Appellant did not object to the videotapes on the ground he now asserts on appeal in Issue 3. He has thus waived any objection to the admission of the videotapes on that basis.

Moreover, the admission of the videotapes containing admissions of guilt by the appellant were harmless since there was direct evidence of appellant s guilt from his own father and from Trooper Macias, who accompanied appellant back to the scene of the crime from Waco. The admission of the videotapes cannot be said to have caused the rendition of an improper judgment. Tex. R. App. P. 44.1.

Issue 3 and the contentions made thereunder are overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Gray, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed January 10, 2001

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