Sterling Ballard, Jr. v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-99-070-CR

STERLING BALLARD, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 27,090

O P I N I O N

The court convicted Sterling Ballard, Jr. in a bench trial of delivery of less than one gram of cocaine and sentenced him to twenty months in a state jail. See Tex. Health & Safety Code Ann. 481.112(b) (Vernon Supp. 2000). Ballard contends in a single point that the court erred in admitting a videotape in evidence which was not properly authenticated.

A confidential informant testified at Ballard s trial that he participated in an undercover operation to purchase narcotics from suspected dealers at various locations in Navarro County. On August 25, 1998, he met some officers to undertake one of these purchases. Corsicana Police Detective Charles Fincher searched him before sheriff s deputy Elmer Tanner transported him to a location in Corsicana. The officers placed a video camera made to appear like a pager on the informant s overalls to record the transaction. Tanner activated the camera when he let the informant out of his pickup. The informant met Ballard in a shop and purchased $30 worth of cocaine from him. The informant later met Tanner and gave the narcotics to him. Tanner turned off the video camera and took it from him. They later met Fincher who again searched the informant.

At this point in the testimony, the prosecutor approached the informant with a VHS video recording marked as State s Exhibit No. 1. The informant testified that he had reviewed this recording earlier on the day of trial and it accurately depicts the events surrounding his purchase of the cocaine from Ballard. He confirmed that the recording equipment was working properly on the date in question and that, to [his] knowledge, the recording had not been altered in any manner.

On voir dire examination by Ballard s counsel, the informant agreed that this recording is a duplicate of the much smaller original recording. He was not present when the duplicate was made and did not maintain custody of the duplicate after it was made. He is not an expert specialized in the field of video and audio recording.

The prosecutor explained that the duplicate was made to fit the court s video player and requested a continuance until the afternoon to obtain the original recording and equipment with which to play it. The court expressed reluctance to postpone the trial and asked whether Ballard even had an objection. Counsel responded:

The objection we would have, your Honor, at this point in time we would object to the introduction of it on the basis that the tape has not been in Mr. McDade s possession. He does not have the expertise to say whether or not the tape may or may not have been altered at this time. So we would object to it on that basis. It is not the original that was with him at that time, it is a copy made by, we will admit to the State s statement that it was made from a micro onto this for viewing purposes for convenience of the Court.

We will stipulate that that was the process done, but this particular witness I don t think has the ability to introduce this tape into evidence at this time.

The court overruled the objection stating, I m going to find the objection goes to the weight and not admissibility at this time. But I will reserve my right to change my mind.

The prosecutor then played the video recording for the court. The informant described what was happening as the recording played. He identified the persons depicted in the video except for one man whom he could not name. The audio recording is so poor that most of the conversations recorded are either inaudible or unintelligible. After the exhibit was played, the informant again testified that the recording accurately portrays the transaction depicted and that there are no alterations or additions to it.

Deputy Tanner confirmed much of the informant s testimony. He testified that the recording equipment was in good working condition on the date in question. He activated the recording device when the informant got out of his pickup and turned it off when he returned. At the conclusion of Tanner s testimony, the trial court asked him whether he questioned the authenticity of the recording. He responded, No question. I actually saw the original before it was ever made into a copy. Ballard s counsel concluded by asking whether there is any deviation, alteration, whatsoever between the duplicate and the original. Tanner replied, Not to my knowledge.

Detective Fincher similarly confirmed much of the informant s testimony. He explained that the original recording is on an eight-millimeter tape. Fincher copied the original recording on the same afternoon he retrieved it from the informant. He then placed the original in the evidence locker and secured the duplicate under lock and key in his office. Only one other detective had access to the recordings. Fincher testified that the duplicate offered in evidence is a true and accurate copy of all of the contents on the original tape.

Ballard argues in his sole point that the court erred in admitting the duplicate video recording because it was not properly authenticated. Under this point he asserts that the original recording should have been required because: (1) the authenticity of the duplicate was questioned; (2) the original was easily obtainable by the State; and (3) the State failed to establish a proper chain of custody for the duplicate.

The State first responds that Ballard has failed to preserve all but the chain of custody complaint because he did not raise the other objections at trial. We disagree. Ballard s objection questioned whether the duplicate had been altered. This objection challenged the accuracy of the duplicate and thus its authenticity. See Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). The objection complained about the State s use of a duplicate recording. Thus, we deem it adequate to include Ballard s argument on appeal that the duplicate should have been excluded because the original was available. See Tex. R. App. P. 38.1(e).

Article X of the Rules of Evidence codifies what was the common law best evidence rule. Englund v. State, 946 S.W.2d 64, 67 (Tex. Crim. App. 1997). Rule 1002 states the general proposition that the original of a recording is required to prove its contents unless otherwise provided. See Tex. R. Evid. 1002; see also Englund, 946 S.W.2d at 67. Rules 1003 and 1004 provide exceptions to the general rule. See Hood v. State, 944 S.W.2d 743, 747 (Tex. App. Amarillo 1997, no pet.); 6 Jack B. Weinstein & Margaret A. Berger, Weinstein s Federal Evidence 1002.04[3] & nn. 8-14 (Joseph M. McLaughlin, ed., 2d ed. Mar. 1997). // The exceptions operate independently of each other. Thus, if the proponent of a duplicate recording can establish that the proffered evidence fits within either exception, the duplicate will be admissible notwithstanding the general rule.

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.

Ballard also contends that the exhibit was not properly authenticated. Before adoption of the Rules of Criminal Evidence in 1986, Texas courts subscribed to the so-called Edwards test to determine whether videotapes with a simultaneous audio and visual recording were properly authenticated. Roy v. State, 608 S.W.2d 645, 649 (Tex. Crim. App. [Panel Op.] 1980) (citing Edwards v. State, 551 S.W.2d 731, 733 (Tex. Crim. App. 1977)). Rule of Evidence 901 now provides the general rule for authentication of evidence. See Tex. R. Evid. 901. At first, the Court of Criminal Appeals determined that Rule 901 is consistent with [Edwards and its progeny]. Kephart v. State, 875 S.W.2d 319, 322 (Tex. Crim. App. 1994) (per curiam). More recently however, the Court has expressly overruled Kephart for the following reasons:

Kephart suggested that Rule 901 was consistent with the pre-rules authentication requirements. We hold that suggestion to be in error. While the Edwards test and other pre-rules caselaw may often yield the same results and may sometimes employ similar reasoning to that required under Rule 901, that is not invariably the case. And, we find that attempting to cling to the Edwards test after the enactment of Rule 901 will result in unwarranted confusion for practitioners, trial courts, and appellate courts. Rule 901 is straightforward, containing clear language and understandable illustrations. Kephart is overruled.

Angleton, 971 S.W.2d at 69. Accordingly, we look to Rule 901 to determine whether the duplicate video in Ballard s case was properly authenticated.

Subsections (1), (4), and (5) of Rule 901(b) provide pertinent illustrations for authentication of a video-audio recording. See Crivello v. State, 4 S.W.3d 792, 802 (Tex. App. Texarkana 1999, no pet. h.); Thornton v. State, 994 S.W.2d 845, 855 (Tex. App. Fort Worth 1999, pet. ref d); see also Angleton, 971 S.W.2d at 67 (discussing authentication of audio recording). These subsections provide the following methods for authentication:

(1) Testimony of Witness with Knowledge. Testimony that a matter is what it is claimed to be;

(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances; and

(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

Tex. R. Evid. 901(b)(1), (4), (5). We now apply these provisions to Ballard s case.

The informant reviewed the duplicate recording on the date of trial and concluded that it is an accurate depiction of what occurred and has not been altered in any manner. Tanner and Fincher both testified that the duplicate is accurate and has not been altered in any manner. Fincher made the duplicate on the same day the original was recorded and maintained custody of it until trial. The video itself depicts a continuous, uninterrupted occurrence from the time the informant left Tanner s pickup until he returned. The testimony of the informant, Tanner, and Fincher all combine to corroborate these authenticating factors. Finally, the informant testified that he talked with Ballard and purchased the cocaine from him, and the trial court (as the trier of fact) could compare the recorded conversation and the physical appearance of the person purported to be Ballard on video with Ballard himself and his courtroom testimony. For each of these reasons, we conclude that the recording was properly authenticated. See Crivello, 4 S.W.3d at 802; Thornton, 994 S.W.2d at 855.

Ballard concludes by averring that the State failed to establish a proper chain of custody for the video exhibit. Under the present rules, a chain of custody must be established to authenticate an exhibit:

when there [is] a possibility of commingling the item with items similar in appearance, when items not having distinctive characteristics [have] not been marked with distinctive markings by the sponsoring witness, and when necessary to refute a suggestion that the evidence [has] been tampered with or changed in some manner.

Moore v. State, 821 S.W.2d 429, 431 (Tex. App. Waco 1991, no pet.) (quoted in 2 Steven Goode et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal 901.3 n.2 (2d ed. 1993)). Ballard suggested at trial that the exhibit was possibly tampered with. Assuming without deciding that this suggestion of tampering raised the issue, we will examine the chain of custody shown by the State. See id.

Detective Fincher testified that he took custody of the original, eight-millimeter videotape upon removing the recording device from the informant. He returned to his office and prepared the duplicate recording offered in evidence that same day. Fincher secured the original in the evidence locker and the duplicate in his office until trial. Only one other detective had access to the duplicate recording in Fincher s office. The informant, Tanner, and Fincher all testified that the duplicate had not been altered in any respect. Ballard offered no affirmative evidence that the duplicate had been tampered with. Accordingly, we conclude that the State established a proper chain of custody for the exhibit. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997).

For each of the reasons stated, we overrule Ballard s sole point of error. We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Vance and

Justice Gray

Affirmed

Opinion delivered and filed June 21, 2000

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