Berthenia Washington v. State of Texas--Appeal from 32nd District Court of Nolan County

11th Court of Appeals

Eastland, Texas

Opinion

Berthenia Washington

Appellant

Vs. No. 11-00-00392-CR B Appeal from Nolan County

State of Texas

Appellee

The jury convicted appellant of delivering one gram or more but less than four grams of cocaine. The jury also found that appellant had previously been convicted of the felony offense of delivery of cocaine as alleged in the indictment for enhancement. Appellant=s punishment was assessed by the jury at confinement for 65 years and a $5,000 fine. Appellant appeals. We affirm.

The record reveals that Officer Marty Baker, while working undercover, purchased crack cocaine from appellant. Officer Baker had a video camera and microphone concealed in his vehicle when he purchased the cocaine from appellant. During Officer Baker=s testimony, the State attempted to introduce into evidence a Acopy@ of the video made during the purchase. Appellant objected that the introduction of the copy rather than the original tape violated the best evidence rule. Officer Baker explained that the copy was a VHS tape and that the original that came out of the camera was an eight millimeter. The eight millimeter was about three times smaller than the copy. The original tape was available at trial. Officer Baker stated that the original eight millimeter tape could not be played in a VCR or a regular projector. That was the reason for converting the original tape to VHS. Officer Baker testified that the VHS tape is an exact copy of the eight millimeter tape that was taken from his vehicle when the delivery of cocaine was made.

Appellant contends in his first issue that the trial court erred in admitting the duplicate copy because it violated the best evidence rule. We think that the Waco Court in Ballard v. State, 23 S.W.3d 178, 181 (Tex.App. - Waco 2000, no pet=n), recently correctly decided the issue before us. The court stated:

Rule 1003 provides in pertinent part that a "duplicate is admissible to the same extent as an original unless ... a question is raised as to the authenticity of the original." TEX.R. EVID. 1003 (emphasis added); see also Williams v. State, 778 S.W.2d 155, 156 (Tex.App. Texarkana 1989, no pet.). Ballard did not challenge the authenticity of the original eight millimeter recording at trial and does not on appeal. The informant, Tanner, and Fincher all testified that the duplicate was accurate. Therefore, because Ballard did not question the authenticity of the original recording, the duplicate recording offered in evidence is admissible under Rule 1003. Id.

Because the recording is admissible under the Rule 1003 exception to the best evidence rule, the State did not need to establish its admissibility under Rule 1004.

In this case, as in Ballard, appellant did not challenge the authenticity of the original tape. Appellant=s first issue is overruled.

During the punishment phase of the trial, Brock Johnson, a certified peace officer working for the West Central Texas Interlocal Crime Task Force, testified that on two occasions on September 24, 1999, he purchased cocaine from appellant. On the first occasion, appellant handed the cocaine to another person who handed it to the officer. On the second occasion, appellant handed the cocaine directly to the officer. The record shows an actual transfer and a separate constructive transfer of cocaine to Officer Johnson by appellant.

Appellant urges in his second issue that the trial court erred in not including in the court=s charge his requested charge containing each of the statutory elements of delivery of cocaine by actual and constructive transfer. The court included the following instructions in the punishment charge:

You may consider evidence of extraneous crimes or bad acts in assessing punishment even if the defendant has not yet been charged with or finally convicted of the crimes or bad acts. However, you may consider such evidence only if the extraneous crimes or bad acts have been shown by the State beyond a reasonable doubt to have been committed by the defendant or are ones for which the defendant could be held criminally responsible.

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A Areasonable doubt@ is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.

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Therefore, if you find and believe beyond a reasonable doubt that the defendant committed extraneous crimes or bad acts or could be held criminally responsible for extraneous crimes or bad acts, then you may consider such evidence in assessing the defendant=s punishment. However, if you have a reasonable doubt that the defendant committed extraneous crimes or bad acts or could be held criminally responsible for extraneous crimes or bad acts, then you may not consider such evidence in assessing punishment.

Appellant objected that the instructions of the court failed to provide the jury with any guidance as to what the elements of the extraneous crimes were.

TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3(a) (Vernon Supp. 2001) states that evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible is admissible at the punishment hearing. Article 37.07, section 3(a) does not require the court to charge on each element of such extraneous crime or bad act. Here, the trial court properly charged the jury on the burden of proof. Huizar v. State, 12 S.W.3d 479 (Tex.Cr.App.2000). Appellant argues that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated. A violation of Article 37.07, section 3(a) does not implicate constitutional rights. Huizar v. State, supra at 484. Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

December 20, 2001

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

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

McCall, J., and McCloud, S.J.[1]

[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.