Joseph Black v. The State of Texas--Appeal from 299th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-392-CR
JOSEPH BLACK,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 106,320, HONORABLE MACE B. THURMAN, JR., JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated assault. Tex. Penal Code Ann. 29.03 (West Supp. 1993). The district court assessed punishment at imprisonment for fifty-five years and a $10,000 fine.

On November 26, 1990, appellant and his brother, John Black, robbed Robert Gomez, the cashier at an Austin convenience store. During the robbery, John Black shot Gomez twice with a pistol. The crime was recorded on two videotape cassettes by the store's security system. In his only point of error, appellant contends the court erred by admitting the two videotapes in evidence because the State failed to lay the proper predicate for admission.

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. Tex. R. Crim. Evid. 901(a). Robert Gomez testified that there were two video cameras in the store, one trained on the counter area and one aimed at the door. Two videotape machines recorded, on eight-hour loops, everything seen by the cameras. Gomez identified State's exhibits one and two as videotape cassettes taken from the in-store recorders after the robbery. Gomez testified that he had watched the relevant portions of each tape, that the tapes fairly and accurately reflected the events that took place in the store from the time the robbers entered until they fled, and that the tapes did not appear to have been altered in any way. This was testimony by a witness with knowledge that the videotapes were what they were claimed to be. Tex. R. Crim. Evid. 901(b)(1). Gomez's testimony also described the system used to produce the videotapes and showed that the system produced an accurate result. Tex. R. Crim. Evid. 901(b)(9). We hold that the videotapes were sufficiently authenticated under rule 901.

Appellant relies on opinions predating the rules of criminal evidence. Roy v. State, 608 S.W.2d 645, 649 (Tex. Crim. App. 1980); Edwards v. State, 551 S.W.2d 731, 733 (Tex. Crim. App. 1977). While we are cited to no opinions discussing the continued viability of these precedents, we conclude that the predicate for admission of videotapes discussed in these opinions was satisfied in this cause. Gomez testified that the videotapes were authentic and correct, and that no changes, additions, or deletions had been made to them. (1) From Gomez's testimony that the videotapes accurately depicted the robbery, it could reasonably be inferred that the recording device was properly functioning and that the operator of the device was competent. All the actors in the videotapes are visible to the viewer and several witnesses identified appellant and his brother as the persons shown robbing Gomez. Appellant does not claim that there are any unidentified voices on the tapes. See Lucas v. State, 791 S.W.2d 35, 57-58 (Tex. Crim. App. 1989). Appellant concedes in his brief that the videotapes were properly preserved and that the actions recorded on the tapes were voluntary. We hold that the predicate for admission of videotapes set forth in Roy and Edwards was satisfied in this cause.

 

The point of error is overruled. The judgment of conviction is affirmed.

 

[Before Chief Justice Carroll, Justices Jones and Kidd]

Affirmed

Filed: January 20, 1993

[Do Not Publish]

1. In his brief, appellant states that the audio portion of the videotapes was not played for the jury. If true, this did not constitute a "deletion" as appellant asserts.