Summary
considering time stamp that was accurate "within a few minutes" in determining authenticity of videotape
Summary of this case from Saldana v. StateOpinion
No. 05-07-00540-CR
Opinion Filed July 8, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-67195-W.
Before Justices MORRIS, FITZGERALD, and LANG.
OPINION
A jury convicted Juan Manuel Garcia of murder. On appeal, he contends the evidence against him is legally and factually insufficient. He further contends the trial court erred in admitting a videotape into evidence and in permitting the prosecutor to make an improper jury argument. Concluding appellant's issues are without merit, we affirm the trial court's judgment.
Factual Background
At approximately 3:00 a.m. one morning, appellant was with his common-law wife at a gas station when she was shot a single time through her car window. Appellant claimed she was shot by two black men who had tried to rob her. Gunshot residue on appellant's hands after the shooting showed he was no more than two feet from the gun when the victim was shot. A man who had been inside the gas station shop during the shooting stated that he heard a sound he thought was a truck backfiring two to three minutes before appellant ran inside asking to call 911. When police arrived at the scene, they searched extensively for the murder weapon in the vicinity of the shooting, but they could not find it. A rock of crack cocaine, twenty-two dollars, and two crack pipes were found in the victim's car. Appellant's car was parked next to the victim's. To prove appellant's guilt at trial, the State relied heavily on inconsistencies among appellant's versions of the offense and conflicts between his statements about the offense and other facts in the case. For example, the State showed appellant claimed to police that when the two alleged robbers told him to put his hands up, he had placed his hands on top of the victim's car. But no prints were found when the car was dusted for fingerprints just after the offense. An officer testified that he would expect to find some form of print if appellant had touched the car the way he claimed. Similarly, appellant claimed to police that he was three to four feet from the shooter, but this claim did not jibe with testimony by the State's forensic expert that the gunshot residue on appellant's hands showed he could not have been more than two feet from the gun at the time of the shooting. The expert further testified that although the individual components of gunshot residue may be found in other things like grease or car batteries, the combined components are found only in gunshot residue. Furthermore, appellant claimed the robbers shot the victim when she honked her horn, but neither the gas station attendant nor the man inside the gas station shop heard a horn. Officers later re-enacted the horn honking, and they were able to hear the sound inside the gas station shop, despite loud traffic noise outside the shop. The man from the shop admitted that while he was banging on the electric game he was playing, he was not able to hear very much around him. He did, however, hear a sound like a truck backfiring two to three minutes before appellant came inside to call 911. The gas station attendant testified that he did not hear a horn sound or a gunshot. In addition, appellant told police that the robbers had come from the apartment complex next to the gas station and escaped in that direction as well. At one point, he had told police the robbers had appeared "out of nowhere," but he later claimed the robbers had emerged from the nearby apartment complex. On several occasions, he stated that the robbers had walked in the direction of the nearby apartments when they made their escape. A videotape from the apartment complex showing the entry point between the apartment complex and the gas station contradicted appellant's claims. It did not show anyone traveling to or from the apartment complex at the relevant times. An officer admitted that a person could climb the fence separating the apartment complex from the gas station and thereby not be seen on the videotape. Appellant never claimed, however, that he saw the alleged offenders climb the fence. Appellant further claimed he paid ten dollars cash for gas before the shooting, but the gas station attendant and the man present in the shop testified that appellant did not purchase anything. Appellant also failed to tell police that he and the victim left the gas station at one point before they returned and the victim was shot. The witness in the gas station shop saw them on the first occasion when they were both inside the shop, and then he saw them leave. According to the witness, appellant seemed like he was in a hurry when he and the victim were in the gas shop together. The witness was also present when appellant later ran inside to call 911. Other evidence showed the victim had purchased telephone air time minutes at a different gas station approximately thirty minutes before she returned to the original gas station and was shot. During the 911 call, when asked if the assailants had taken anything from him, appellant remarked, "From what I can see they didn't steal anything. My wife was alone, and she would know." Appellant later told police the robbers had taken three or four dollars from him. While he was being questioned, appellant asked if there were cameras outside of the gas station that recorded the shooting. Appellant was unable to give police any distinguishing details of the alleged offenders aside from their estimated age, their build, their race, and their height. He claimed they were both thin black men approximately five feet, three inches in height, and approximately twenty years old. Appellant told an officer he thought the robbers had a black automatic weapon. Appellant's claims about whether he and the victim purposely met at the gas station or happened to run into each other also varied. He told police that they had "bumped into each other" there. But he told the police department's victim services coordinator that he and the victim had arranged to speak with each other at the gas station at that time. Appellant told police he and the victim were not living together at the time of the offense. Appellant lived in East Dallas, whereas the victim lived Pleasant Grove, where the offense occurred. According to appellant, he had retrieved his tools, which he had used to fix the victim's car, from her car before the robbers arrived. The witness in the gas station shop had seen an exchange of items from the victim's trunk to appellant's when the two were first at the station, but he could not identify what was being moved. Appellant's brother and sister-in-law testified that he and the victim sometimes lived with them and that they always seemed to have a good relationship. According to the brother, appellant had worked on the victim's car the day before the shooting.Discussion
In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence against him. He argues in particular that the circumstantial evidence in the case is simply too weak to support his conviction under either standard. When reviewing challenges to the legal sufficiency of the evidence, we review the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). In a factual sufficiency review, we consider all the evidence to determine whether it is so weak that the jury's verdict seems clearly wrong and manifestly unjust or whether, considering conflicting evidence, the verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007). A clearly wrong and manifestly unjust verdict shocks the conscience or clearly demonstrates bias. See id. In a factual sufficiency review, we may substitute our judgment for the jury's on the issues of the weight and credibility to be given to witness testimony only to a very limited degree. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Gunshot residue evidence in appellant's case showed he was no more than two feet from the gun that shot the victim, his common-law wife, despite his claim that he was three to four feet away from the shooter. Appellant claimed he had put his hands on the top of the victim's car, but no fingerprints were found there. A witness in the gas station shop heard a loud noise that sounded like a truck backfiring at the time of the shooting, but two to three minutes passed before appellant came into the shop to call 911. And although appellant claimed the victim had honked her horn before she was shot, the witness never heard a horn. Furthermore, appellant claimed that two robbers had emerged from the area of the nearby apartments and escaped in that direction as well, yet videotape of that area failed to reveal any persons coming from or going to the apartments. We have reviewed all the evidence in the case and conclude it is legally and factually sufficient to support appellant's conviction. We resolve appellant's first and second issues against him. In his third issue, appellant complains the trial court erred in admitting the videotape from the apartment complex into evidence. He specifically contends the videotape was not properly authenticated because the apartment manager who testified about the tape did not establish the reliability of his videotaping system. We review the trial court's decision to admit the videotape under an abuse of discretion standard. See Reavis v. State, 84 S.W.3d 716, 719 (Tex.App.-Fort Worth 2002, no pet.). Thus, we uphold the court's decision as long as it was within the zone of reasonable disagreement. See id. Here, Fred Bost, the owner of the apartment next to the gas station, testified that on the date of the murder he had given police a security videotape. The videotape was recorded by a camera at his apartment complex during the hours surrounding the offense. Bost, who had installed the camera himself, testified that the camera was working properly on the night of the offense. He had personally loaded the videotape into the camera. Bost noted that the date stamp on the videotape was correct, except for the year 2008, which he had not programmed to show the correct year of 2006. He further noted that the time stamp on the videotape was accurate "within a few minutes." Bost testified that he personally checks the videotapes to be sure the security cameras at the apartment complex are working. When asked how he could tell whether it was morning or evening on the videotapes, Bost stated, "I'm usually the one that operates it, and I just know." Bost testified that the videotape he gave to police recorded the area in the front of the apartment complex where it joins with the neighboring gas station. Texas Rule of Evidence 901(a) states that the authentication requirement for admissibility of evidence is satisfied by proof sufficient to support a finding that the matter in question in what its proponent claims it is. See id. (citing Tex. R. Evid.901(a)). One example of sufficient proof is testimony by a witness with knowledge that the matter is what it is claimed to be. Id. (citing Tex. R. Evid.901(b)). In this case, Bost showed his knowledge of the operation of the apartment complex's cameras and his knowledge of what was recorded on the videotape. He was sufficiently able to show that the videotape offered into evidence was a recording of the area between the gas station and his apartment complex during the critical times surrounding the shooting. See id. at 720. We conclude the trial court did not abuse its discretion in admitting the videotape into evidence. We resolve appellant's third issue against him. Appellant complains in his final issue that the trial court erred in overruling his objection to "an impermissible jury argument." During argument for the guilt-innocence phase of trial, defense counsel commented to the jury, "[Appellant is] the guy that was standing next to somebody that got mad because crack head girlfriend blew that horn. Not — not a smart thing to do. And they blew her away, which they will do. . . . [T]hat is a dangerous area, especially late at night." The prosecutor later argued the following:And what I would ask you to remember . . . is that this is a woman who's more than a crack head girlfriend. This is a woman who lived a life that was important to her family and important to her mom. And how precious those times were when her daughter would call just to say I love you. And when her daughter would come by the store and just say, I was thinking about you and I wanted you to know that I'm okay. And can you really look these people in the eye and say that this isn't a life that was important and this isn't a life that —At that point, a defense objection that the argument was outside the record and inflammatory was overruled. The prosecutor then continued,
Can you look these people in the eye and say, your daughter is nothing but a crack head and we don't care about her life? I don't believe you can. I believe that you understand that no matter what you think about this woman's lifestyle . . ., this is a woman whose life had value and who was important to her family and this family cared about her. . . . and who wants more than anything to have her back and they know that's not going to happen. . . .Appellant now contends the prosecutor injected a punishment issue into the guilt-innocence phase of trial. He argues the prosecutor invited the jury to consider during its deliberations on guilt that a finding of not guilty was equivalent to a finding that the victim's life was valueless. The State argues that appellant did not preserve this argument for appeal because he complained at trial only that the argument was outside the record and inflammatory. We agree. For an appellant to preserve a complaint for review, the record must show the complaint was made to the trial court by a timely request, objection, or motion made with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. See Tex. R. App. P. 33.1. At trial, appellant objected that the argument was inflammatory and outside the record. He now contends the argument injected a punishment issue into the guilt-innocence deliberations. Appellant may not use an objection stating one legal basis to support a different legal theory on appeal. See Karnes v. State, 873 S.W.2d 92, 101 (Tex.App.-Dallas 1994, no pet.). Because his objection at trial differed from his argument on appeal, appellant preserved nothing for review. We resolve his fourth issue against him. We affirm the trial court's judgment.