Desiree Lingo-Perkins, a/k/a Desiree Perkins-Lingo v. The State of Texas--Appeal from 2nd District Court of Cherokee County

NO. 12-05-00171-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DESIREE DAWN LINGO-PERKINS, APPEAL FROM THE SECOND

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Desiree Lingo-Perkins appeals her conviction for capital murder. In two issues, she complains that the trial court erred when it denied her motion for a new trial without a hearing and that the trial court erred when it allowed an audio tape into evidence. We affirm.

Background

On March 10, 2000, Kevin McElroy received a telephone call at the business he owned. The caller, a woman, told McElroy that she and others had kidnapped his teenage son, Kyle McElroy. McElroy then heard his son s voice on the telephone telling him to do what the woman said because the kidnappers were going to kill him.1 The woman directed McElroy to a location where he would find his son s pickup truck and a ransom note. McElroy went to the City of Troup police department and talked to the chief. Then, with an officer observing surreptitiously, McElroy went to Highway 110 where he found his son s truck. He broke the window to get in and found the note. The typewritten note told McElroy that his son was alive, demanded $200,000 for his safe release, and instructed McElroy to wait for a phone call at his office.

In the meantime, the Troup police chief called the Federal Bureau of Investigation (FBI). The closest FBI office was in Tyler, Texas, and the agents and special agents were at the firing range in north Tyler. The entire office went to Troup, and they set up a command post at a closed local business. McElroy met with the FBI agents. They gave him a device to record telephone calls and assigned agents to protect him. McElroy withdrew $100,000 in cash from a local bank and returned to his business to await another telephone call. At about 7:00 p.m., McElroy received another phone call from the same woman. The woman was upset that he had only obtained half the money and hung up. She called back less than an hour later and directed him to a phone booth in New Summerfield, outside a restaurant, where he would find further instructions.

McElroy went to the phone booth and found a second note. As directed by the note, he left the money in the back of a laundromat just down the road from the telephone booth and then went back to his office to wait for another phone call. The FBI agents maintained surveillance on the laundromat and arrested Daniel Rios, a machine operator at McElroy s business, after he picked up the money. Working quickly, they identified and arrested several other subjects. The next day, their investigation led them to a remote location and to Kyle McElroy s body. He had been strangled and was dead.

The FBI investigators identified Appellant as the woman who had called McElroy, but were unable to locate her. Several years passed, and she was finally located in Nuevo Laredo, Mexico. The FBI arranged for the Mexican police to arrest Appellant, and she was repatriated to the United States in 2004. Upon being brought into custody in the United States, Appellant admitted that she had been the caller, although she said that her cooperation had been under duress.

A Cherokee County grand jury indicted Appellant for the felony offense of capital murder. The State did not seek the death penalty, and Appellant was convicted as charged in the indictment. Pursuant to law, her punishment was assessed at life in prison. This appeal follows.

Motion for New Trial

In her first issue, Appellant complains that the trial court erred when it denied her motion for a new trial without a hearing.

Standard of Review

In her motion for a new trial, Appellant alleged that the evidence was insufficient to support her conviction and that a juror had committed misconduct. Appellant presently complains that the trial court should have held a hearing on the second complaint. Appellant s specific complaint of misconduct is contained in one sentence attested to by her appellate attorney. The attorney swore under penalties of perjury as follows: Defendant alleges that jury misconduct occurred in that the jury foreperson has indicated publicly that the jurors considered the lack of any rebuttal by the defense against the State s case.

We review the trial court s decision2 not to conduct a hearing on a motion for new trial for an abuse of discretion. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). An abuse of discretion occurs if a trial court makes a ruling without reference to any guiding rules or principles or, in other words, when the act was arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

Analysis

  As a prerequisite to obtaining a hearing and as a matter of pleading, motions for new trial must be supported by affidavit, either of the accused or someone else, specifically showing the truth of the grounds of attack. Martinez v. State, 74 S.W.3d 19, 21-22 (Tex. Crim. App. 2002); McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985). The affidavit is not required to reflect every component legally required to establish relief, but either the motion itself or the affidavit must show that reasonable grounds exist to grant relief. Martinez, 74 S.W.3d at 21-22; Reyes, 849 S.W.2d at 816.

Appellant s motion for new trial was filed in a timely fashion, properly presented to the trial court, and supported by a sworn affidavit. Because the trial court did not conduct a hearing on the motion, we must determine whether the affidavit and motion are sufficient to require the trial court to conduct a hearing.

This case is similar to Martin v. State, 823 S.W.2d 391, 393 (Tex. App. Texarkana 1992, pet. ref d) in which the Sixth Court of Appeals held that hearsay statements of counsel complaining of juror misconduct were insufficient to require a hearing. Id. (citing McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim. App. 1985)). The affidavit in this case is even less compelling. The affidavit held insufficient in Martin contained the hearsay statement of counsel reporting what a juror had told him. The affidavit in this case contains at least two levels of hearsay, and the affidavit does not state who heard the juror s statements or how counsel learned of the statements. See also Vyvial v. State, 111 Tex. Crim. 111, 10 S.W.2d 83, 84 (1929) (When a motion for new trial depends on extraneous matters which are necessarily hearsay, the accused must have attached the affidavit of some person who has knowledge of the facts.).

Appellant s counsel had no personal knowledge of any misconduct and did not include an affidavit of either a juror or a person who had personal knowledge of the juror s statements. Furthermore, the juror would have been unable to testify to the contents of the jury deliberations. See Tex. R. Evid. 606(b); State v. Lewis, 151 S.W.3d 213, 219-20 (Tex. App. Tyler 2004, pet. ref d); but see White v. State, 181 S.W.3d 514 (Tex. App. Texarkana 2005, pet. granted). Therefore, the trial court was not required to hold a hearing on Appellant s motion. Consequently, the trial court did not abuse its discretion when it overruled Appellant s motion by operation of law. Appellant s first issue is overruled.

Admission of Audio Tape of Ransom Demand

In her second issue, Appellant complains that the trial court erred when it permitted into evidence the audio tape of Appellant demanding money from Kevin McElroy for the safe return of his son. Specifically, Appellant complains that the voice was not sufficiently authenticated as being hers and that the tape itself was not sufficiently authenticated as being an accurate representation of the conversation that occurred.

The second complaint is waived. Although Kevin McElroy did identify the tape as containing the conversation he had with the caller, the only objection at trial was to an identification of Appellant as the caller on the tape. Because there was not an objection to the general authenticity of the tape, that complaint is waived. See Tex. R. App. P. 33.1(a)(1)(A); Young v. State, 183 S.W.3d 699, 704-05 (Tex. App. Tyler 2005, pet. ref d).

With respect to the complaint that Appellant s voice was not identified, we review a trial court s admission or exclusion of evidence for an abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 391. A trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Montgomery, 810 S.W.2d at 380.

Rule of Evidence 901 governs the authentication requirement for the admissibility of recorded evidence. See Tex. R. Evid. 901; Angleton v. State, 971 S.W.2d 65, 69 (Tex. Crim. App. 1998). The authentication requirement for admissibility of evidence is satisfied by proof sufficient to support a finding that the matter in question is what the proponent claims it is. Tex. R. Evid. 901(a). Subsection (b) provides a nonexclusive list of methods to authenticate evidence. Tex. R. Evid. 901(b). One example given is the testimony of a witness with knowledge that a matter is what it is claimed to be. Tex. R. Evid. 901(b)(1). Another is identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at anytime under circumstances connecting it with the alleged speaker. Tex. R. Evid. 901(b)(5).

It was reasonable for the trial court to conclude that it was Appellant s voice on the recording. Two witnesses who knew Appellant and her voice testified that they heard the tape and recognized her voice. One of these witnesses heard the tape when it was played on television shortly after the kidnapping. She reported to the FBI agents working on the case that she knew the caller to be Appellant. Additionally, Appellant s admission to an FBI agent that she was the caller is at least circumstantial evidence that it was her voice on the tape. The trial court did not abuse its discretion when it allowed the audio tape into evidence. We overrule Appellant s second issue.

Disposition

We affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 7, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)

1 During the trial there was evidence that suggested it was a recording of Kyle s voice that was played during the telephone call.

2 The trial court attempted to schedule a hearing, and the record contains correspondence from the court s coordinator to Appellant s counsel and from counsel to the coordinator to that end. No hearing was held, and the motion was overruled by operation of law. See Tex. R. App. P. 21.8(c).