Opinion
05-22-01052-CR
05-09-2024
DRESEYON ISIAH OWENS, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b) 221052F.U05
On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F20-41487
Before Justices Molberg, Pedersen, III, and Goldstein
MEMORANDUM OPINION
BONNIE LEE GOLDSTEIN JUSTICE
Dreseyon Isiah Owens appeals his murder conviction. Pursuant to a plea bargain agreement, appellant entered a guilty plea, and the trial court sentenced him to twenty-five years' confinement. In a single issue, appellant argues the trial court erred in denying his motion to suppress a recording of an interview with police. We affirm the trial court's judgment.
We note the State lists a cross-issue in the table of contents but does not endeavor to brief the merits. Accordingly, we do not address the State's cross-issue.
In October 2020, appellant was charged by indictment with murder. In August 2022, appellant filed a motion to suppress statements from his post-custodial interrogation. Specifically, appellant asserted the recording of his interrogation did not comply with article 38.22 of the code of criminal procedure because there was no video recording of the interrogation, only audio, indicating that "the operator was necessarily incompetent in the context of article 38.22."
At a hearing on appellant's motion to suppress, appellant's counsel stated that appellant had been arrested, brought in for questioning by police, and Mirandized. However, counsel argued, although the State "intended to videotape and audiotape record this statement," the video was "blue" and "didn't come out." Counsel asserted the absence of video showed that "either the operator of the video was incompetent, or some other malfeasance or something happened, because there's only an audio recording."
The State called Mesquite police detective Michael Smith, who testified he interviewed appellant shortly after his arrest. Smith testified the interview was electronically recorded, and State's Exhibit 1 was a true and correct copy of the recording of the interview. The State offered the recording into evidence, and defense counsel took Smith on voir dire. In response to questioning, Smith testified there had been no edits, alterations, or deletions to the recording; the recording showed a blue screen and an audio track with two voices; and the voices were those of Smith and appellant. At the time the recording was made, Smith was not aware that the video was not working. Defense counsel state he had no "objection to Exhibit 1 for this hearing," and the trial court admitted the exhibit. The trial court subsequently denied the motion to suppress. Appellant entered a guilty plea pursuant to a plea bargain agreement and received a sentence of twenty-five years' confinement. This appeal followed.
In a single issue, appellant argues the trial court erred in denying his motion to suppress the recording of his interview with Smith because the evidence did not demonstrate that Smith was competent as required by article 38.22.
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review, where fact findings are reviewed for abuse of discretion and applications of law are reviewed de novo. State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019). We give near total deference to the trial court's determinations of historical fact and to mixed questions of law and fact that turn on witness credibility when supported by the record. See State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). We uphold the trial court's ruling if it is correct on any applicable theory and is reasonably supported by the record. Ruiz, 581 S.W.3d at 785.
Whether the predicate for admission of a videotaped confession has been satisfied is a matter within the trial court's discretion. McEntyre v. State, 717 S.W.2d 140, 146 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd). Section 3(a)(3) of article 38.22 provides that a defendant's oral statement is not admissible against the defendant in a criminal proceeding unless "the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered." Tex. Code Crim. Proc. art. 38.22.
The trial court is within its discretion to infer that the requirements of section 3(a)(3) have been met if the tape is an accurate portrayal of the interview. See Maldonado v. State, 998 S.W.2d 239, 246 n.9 (Tex. Crim. App. 1999); Falcetta v. State, 991 S.W.2d 295, 298 (Tex. App.-Texarkana 1999, pet. ref'd). A person with knowledge of the interview need only testify that the video is an accurate portrayal of the interview and has not been altered in order to meet the requirements of article 38.22, section 3(a)(3). See Minger v. State, No. 11-01-00107-CR, 2003 WL 190729, at *4 (Tex. App.-Eastland 2003, no pet.) (not designated for publication) (concluding that testimony of witness with personal knowledge that the video accurately portrays the interview permits inference of compliance with article 38.22, section 3(a)(3)).
Appellant complains that Smith was not competent within the meaning of article 38.22 because only the audio portion of Smith's interview with appellant was captured; the video portion displayed nothing but a blue screen. However, Smith had personal knowledge of the recording because he conducted the interview with appellant. See id.; see also Falcetta, 991 S.W.2d at 298. Smith reviewed the recording and testified that the recording was an accurate recording of the interview and had not been altered. Though inadvertent as well as intentional anomalies in a recording may affect reliability and admissibility of a recording, Smith's testimony supports an inference that the recording accurately reflects Smith's interview with appellant, that the audio-only nature of the recording was unintentional, and that the recording had not been impermissibly altered in the sense contemplated by article 38.22, section 3(a)(3). See Maldonado, 998 S.W.2d at 245-46 (admitting a videotape with "skips" or "anomalies" under article 38.22, section 3(a)(3)). There is adequate evidence in the record to support the conclusion that the blue screen was merely an inadvertent technical error and did not affect the overall reliability of the recording. Id. at 245. Moreover:
[w]e do not construe Sec. 3(a)(1) of Art. 38.22, supra, to exclude audio recordings, but rather to point out that the electronic recording "may include" certain named visual recordings. We reject appellant's contention that Art. 38.22, Sec. 3(a)(1), supra, requires that all oral statements be visually recorded.See Paster v. State, 701 S.W.2d 843, 846 (Tex. Crim. App. 1985).
Because Smith had personal knowledge of the interview, he only needed to testify that the recording was accurate and had not been altered to meet the requirements of article 38.22, section 3(a)(3). See Minger, 2003 WL 190729, at *4; see also Falcetta, 991 S.W.2d at 298-99. As evidence that Smith was not competent within the meaning of article 38.22, appellant relies only on the absence of the video portion of the recording of appellant's interview. On this record and in light of Smith's testimony that the recording was accurate and had not been altered, we conclude the trial court was within its discretion in determining that Smith was competent; the tape was accurate and had not been impermissibly "altered" in the sense contemplated by Article 38.22 section 3(a)(3); and therefore the recording of appellant's interview was admissible. See Maldonado, 998 S.W.2d at 246; Minger, 2003 WL 190729, at *4. Accordingly, the trial court did not err in overruling appellant's motion to suppress the recording of his interview. See Ruiz, 581 S.W.3d at 785. We overrule appellant's sole issue. We affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.