Teeter v. State

Full title: BRYAN DEAN TEETER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Feb 20, 2007

No. 05-06-00309-CR (Tex. App. Feb. 20, 2007)

Opinion

No. 05-06-00309-CR.

February 20, 2007. DO NOT PUBLISH.

On Appeal from the 86th District Court Kaufman County, Texas, Trial Court Cause No. 21727.

Before JUSTICES, MORRIS, LANG, and LANG-MIERS.

OPINION

DOUGLAS S. LANG, JUSTICE.

Bryan Dean Teeter appeals the trial court's judgments convicting him of sixteen counts of endangering a child. The jury found Teeter guilty of seventeen counts of endangering a child and assessed his punishment for each count at two years of confinement, which was probated for four years, and a $5,000 fine. Subsequently, the trial court granted Teeter's motion for new trial with regard to count sixteen. Teeter raises four issues on appeal arguing: (1) the evidence is legally insufficient; (2) the evidence is factually insufficient; (3) the trial court erred when it admitted the videotape into evidence; and (4) the trial court erred when it admitted evidence relating to the contents of his vehicle. We conclude the evidence is legally and factually sufficient. Also, we conclude the trial court did not err when it admitted the videotape and evidence relating to the contents of Teeter's vehicle. The trial court's judgments are modified to reflect that the applicable statute for the offense is section 22.041(c) of the Texas Penal Code. The trial court's judgments are affirmed as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND

Teeter was a school bus driver for the Kaufman Independent School District (K.I.S.D.). He began driving school bus no. 5 in February 2002. The children on Teeter's route characterized him as a very careful bus driver who never missed a stop. On August 20, 2002, at the beginning of the school year, Teeter drove school bus no. 5. Before Teeter left the school bus lot to pick the children up at school, Gale Moericke, the shop foreman, saw Teeter on the school bus and noticed Teeter looked a "little different." When the children boarded the school bus, they observed that Teeter was acting out of character. Preston G. stated that usually, Teeter required the children to sit in assigned seats, but on this day, he just told them to find a seat. Also, Jessica J. stated that normally, when they got on the school bus Teeter greeted them by name, but on August 20, 2002, Teeter did not greet them. The videotape recorded routinely to monitor activity on the school bus revealed that after picking the youngest children up from school and, while driving to the older children's school, Teeter stated he was "completely confused," the road construction was "driving [him] up the wall," and he had effectuated a "curb check" or hit the curb. Also, when Teeter picked up some of the older children, one of the people who helps load the children on the bus complained to Teeter the children had been out of school for fifty minutes. Although Teeter normally did not yell, Alicia H., Preston G., Jason G., Tiffany G., Jessica J., and Claudia G. stated Teeter's voice was loud or he was yelling. Rebecca C., Justin H., Claudia G., and Cody B. stated Teeter's speech was slurred or "weird." Also, Teeter stopped the school bus four or five times to yell at the children. Alicia H., Preston G., Jason G., Thomas M., Tiffany G., Jessica J., and Cody B. observed that Teeter was driving very fast. Jessica J. stated that things seemed to pass by faster than usual and Jason G. stated the trees seemed to go by fast. Jason G. and Cody B. observed the school bus engine roared louder than usual, and Cody B. saw the speedometer indicated they were traveling 70-75 miles per hour. During the bus ride, Thomas M., Justin H., Jessica J., Claudia G., and Cody B. noticed the school bus went off the road. Thomas M., Tiffany G., Claudia G., and Cody B. noticed the school bus swerved from side to side. Jessica J. and Claudia G. observed that the school bus crossed the center line in the road. Alicia H., Preston G., Rebecca C., Thomas M., and Tiffany G. commented that when Teeter drove around a corner, he did not slow down and the school bus almost "flipped" over. Anthony B., Preston G., Jason G., Rebecca C., Thomas M., Justin H., Tiffany G., Jessica J., Claudia G., Cody B. observed that Teeter smelled of alcohol. Anthony B., Jason G., and Tiffany G. observed that Teeter was carrying a Coca-Cola bottle that smelled of alcohol. Anthony B. and Jason G. saw that the Coca-Cola bottle contained a clear, yellow liquid. Justin H. noticed Teeter had to lean against the seats to maintain his balance when he walked up and down the aisle of the school bus yelling at the children. When only a few children remained on the school bus, Teeter missed a turn. The children called out for Teeter to stop, but he did not. When Teeter attempted to back the school bus up and turn it around, the school bus hit tree branches, which entered into the bus through the open windows. Then, the school bus went into a ditch. At this point, Anthony B., Cody B., Jason G., Alexandria G., Barbara G., Alicia H., Justin H., Christina J., and Jessica J. got off the school bus and walked approximately a mile home. Meanwhile, Garland Willis, transportation custodial director for K.I.S.D., received a telephone call from a woman complaining that school bus no. 5 had run her off the road. Then, Willis received several other telephone calls from people who were concerned that the driver of school bus no. 5 was drunk. Willis attempted to contact Teeter over the two-way radio, but Teeter did not respond. Also, Jeri Ann Campbell, assistant principal of Kaufman High School, met with a woman who had driven to the school to complain school bus no. 5 had run her off of the road. Willis told John Hughes, the driver of school bus no. 9, to wait for Teeter because Willis did not want Teeter to leave. Hughes waited in the parking lot and saw Teeter return. Teeter had difficulty making the turn from the road into the parking lot and just missed hitting the gate at the entrance. Hughes called out for Teeter to stop because Teeter was about to drive school bus no. 5 into school bus no. 18. Teeter stopped school bus no. 5 in front of the "bus barn." Hughes walked to school bus no. 5 and Teeter opened the door. Hughes smelled the strong odor of alcohol and Teeter told Hughes he had been drinking. As Teeter was exiting school bus no. 5, he stumbled. Hughes grabbed Teeter, held him up, and helped him walk to Moericke's office because at least one person complaining about school bus no. 5 was in Willis's office. Hughes seated Teeter on a couch in the office and told him to wait for Willis. Then, Hughes asked Teeter for the keys to Teeter's truck because he was afraid Teeter might try to drive. Teeter gave Hughes his keys. Hughes could not recall whether he gave the keys to Willis or Moericke. Moericke saw Hughes helping Teeter into his office. He went into his office and asked Teeter what was happening. Teeter did not respond. Moericke observed that Teeter "did not look good," his eyes were bloodshot and "blurry looking," and he smelled of alcohol. Moericke believed Teeter was intoxicated. Then, Moericke left his office. Willis followed Hughes and Teeter into the office. Willis smelled the odor of hard alcohol on Teeter. For three to five minutes, Willis questioned Teeter about his actions. Teeter sat slumped on the couch looking at Willis with "slobber running out the sides of his mouth." Teeter mumbled and gestured with his hands, but his words were so slurred Willis could not understand what Teeter was saying. Willis told Teeter he was fired, even though he did not have the authority to terminate Teeter's employment. After Teeter left the office, Willis retrieved the videotape from the locked video recorder on school bus no. 5 and placed it in his desk. As Hughes was driving away from the school bus lot, he saw Teeter walking down the street. When Teeter turned to see who was driving behind him, he stumbled and sat down in the grass. Hughes told Teeter to get into his truck, but Teeter refused. Hughes insisted and helped Teeter up off the grass and into his truck. Hughes observed that Teeter smelled of alcohol and the odor was stronger than it had been when he helped Teeter off the school bus. Teeter wanted to go to his mother's house and gave Hughes directions. Teeter's directions were not very good and Hughes had to turn around one time. When they neared Teeter's mother's house, Teeter told Hughes to pull his truck off the road. Teeter pointed to the third house down the street and indicated it was his mother's house. Teeter got out of the truck and walked to his mother's house. Hughes observed that Teeter was walking all over the road. It took him five minutes to reach his mother's house. The next morning, Teeter checked himself into the hospital where he was treated for "over-drinking," and mental and emotional distress. On August 21, 2002, based on Willis's recommendation, Teeter's employment was officially terminated. Then, Willis contacted Debbie Nixon, Chief of Police for K.I.S.D. After obtaining Willis's statement and the videotape, Chief Nixon began investigating the previous day's events relating to school bus no. 5. Chief Nixon watched the videotape, but returned it to Willis to see if he could identify the children on the school bus. Willis watched the videotape to see if he could identify the children, fast-forwarding portions of it, and returned it to Chief Nixon after about an hour. While at the school bus lot, Chief Nixon observed Teeter's truck was still parked on school property. She noticed that inside Teeter's truck was a bucket containing open alcohol containers. The bucket contained one 750 ml bottle of sour mash whiskey, one empty 750 ml bottle of bourbon, one 12 oz. bottle of Michelob Lite beer, and eleven 12 oz. bottles of Bud Ice ale. Teeter was indicted for sixty counts of endangering a child. However, before trial, the State dropped counts twenty-three through sixty. After resting its case-in-chief, the State dropped counts one, three, eight, nine, and twenty-two. After a trial, the jury found Teeter guilty of seventeen counts of endangering a child and assessed his punishment at two years of confinement for each count, which was probated for four years, and a $5,000 fine. Teeter filed a motion for new trial, which the trial court granted with respect to count sixteen, which alleged he endangered Alicia H. Teeter appeals the judgments relating to the remaining sixteen counts, i.e., counts two, four through seven, ten through fifteen, and seventeen through twenty-one, which alleged he endangered Anthony B., Katy B., Cody B., Jordan C., Rebecca C., Jason G., Claudia G., Tiffany G., Preston G., Alexandria G., Barbara G., Justin H., Christina J., Jessica J., Elizabeth K., and Thomas M.

II. LEGAL AND FACTUAL SUFFICIENCY

In his first and second issues, Teeter argues the evidence is legally and factually insufficient to support his conviction. In support of these issues, he argues the evidence does not show he intentionally or knowingly created a danger to the children riding on the school bus, or that his conduct placed the children in imminent danger. Also, Teeter claims there was no evidence that three of the children, Jordan C., Jessica J., and Alicia H., were under the age of fifteen at the time of the incident. The State responds that the evidence showed Teeter engaged in conduct that endangered the children when the school bus nearly flipped over, he drove the school bus at a high rate of speed, the school bus crossed the center line of the road, and leafy branches struck the school bus and entered through the open windows. Also, the State responds that the jury was able to determine the ages of the children by watching the videotape and from their testimony.

A. Standards of Review

Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Lee v. State, 186 S.W.3d 649, 654 (Tex.App.-Dallas 2006, pet. ref'd). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. See id.

1. Legal Sufficiency

The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall, 210 S.W.3d at 625; King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Lee, 186 S.W.3d at 654. In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Marshall, 210 S.W.3d at 625; Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998); Lee, 186 S.W.3d at 654.

2. Factual Sufficiency

In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 417. When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial. See Marshall, 210 S.W.3d at 625; see also King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Lee, 186 S.W.3d at 655; Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. See Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17; see also Johnson, 23 S.W.3d at 9 (factual sufficiency review requires reviewing court to afford "due deference" to jury's determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996) (factual sufficiency review requires "deferential standards of review applied" to jury verdicts). However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001); Lee, 186 S.W.3d at 655. An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. See Watson, 204 S.W.3d at 417. Reversal for factual insufficiency occurs only when there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See id.; see also Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.

B. Applicable Law

Section 22.041(c) of the Texas Penal Code provides that a person commits the offense of endangering a child if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment. Tex. Pen Code Ann. § 22.041(c) (Vernon Supp. 2006). The language of section 22.041(c) expresses a clear legislative intent that a person commits the offense of child endangerment if he intentionally, knowingly, recklessly, or with criminal negligence decides to act in a manner that places a child in imminent danger. See Walker v. State, 95 S.W.3d 516, 520-21 (Tex.App.-Fort Worth 2002, pet. ref'd). The statute does not require proof that the defendant intentionally, knowingly, recklessly, or with criminal negligence desires to place a child in imminent danger and creates that danger by his conduct. See id. Any conduct that places a child in imminent danger is prohibited. See Millslagle v. State, 81 S.W.3d 895, 897 n. 1 (Tex.App.-Austin 2002, pet. ref'd).¹ For purposes of section 22.041(c), a child is a person fourteen years of age or younger. See Tex. Pen Code Ann. § 22.041(c). Testimony is sufficient to prove the age of a child. See generally Jason v. State, 589 S.W.2d 447, 449 (Tex.Crim.App. 1979) (discussing aggravated sexual assault). Further, the fact-finder may infer age from the circumstances, but evidence must be in the record on which to base the inference. See generally Stewart v. State, 933 S.W.2d 555, 557 (Tex.App.-San Antonio 1996, pet. ref'd) (no evidence from which fact-finder could infer child younger than 14 in sexual assault case). Also, the fact-finder may infer age from visual evidence including a description of the child's physical appearance, demeanor, or any other physical characteristic from which age may be inferred. See generally Henson v. State, 173 S.W.3d 92, 103 (Tex.App.-Tyler 2005, pet. ref'd) (no description of physical appearance, demeanor, or other physical characteristic from which inference of age could be drawn in criminal solicitation of minor case). Finally, there are numerous ways in which a defendant can place a child in imminent danger of death, bodily injury, or physical or mental impairment. See, e.g., Rodriguez v. State, 137 S.W.3d 758, 761 (Tex.App.-Houston [1^st Dist.] 2004, no pet.) (driving while intoxicated with child in vehicle); Millslagle, 81 S.W.3d at 897 n. 1 (any conduct that places child in imminent danger is prohibited); Walker, 95 S.W.3d at 521 (evading arrest and violating traffic laws with child in vehicle); Contreras v. State, 54 S.W.3d 898, 905 (Tex.App.-Corpus Christi 2001, no pet.) (failing to provide adequate nourishment). To be guilty of endangering a child, the defendant must have placed the child in imminent danger. See Millslagle, 81 S.W.3d at 898. "Imminent" means ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near. See id. Section 22.041(c) does not require proof that the defendant caused bodily injury to the child. See Contreras, 54 S.W.3d at 905-06. However, it is not sufficient that the defendant placed the child in a situation that is potentially dangerous. See Millslagle, 81 S.W.3d at 898. Rather, the defendant's conduct must have threatened the child with immediate, impending death, bodily injury, or impairment. See id.

C. Application of the Law to the Facts

Teeter contends the evidence does not show he "intentionally, knowingly, recklessly, or with criminal negligence placed the children] in imminent danger." He argues the "evidence admitted at trial only shows acts of [Teeter] while driving his school bus and the evidence is insufficient to show one of the four culpable mental states." Teeter also contends that proof of his intoxication was not appropriate for the jury to consider when determining whether he endangered the children and, even if it were, the evidence proves only that he was intoxicated after he returned the school bus. Further, Teeter claims the evidence was insufficient to prove Jordan C., Christina J., and Alicia H. were younger than 15 years of age at the time of the offense. Viewing the evidence in the light most favorable to the verdict, there was evidence that Teeter intentionally, knowingly, recklessly or with criminal negligence engaged in conduct that placed the children in imminent danger while he was driving the school bus. There was evidence that while Teeter was driving the children home from school, he drove the school bus at a high rate of speed, went off the road, crossed the center line in the road, swerved from side to side, almost "flipped" the school bus when he drove around a corner without slowing, struck trees so that tree branches entered the school bus through the open windows, and backed the school bus into a ditch. Teresa G., Claudia G. and Tiffany G.'s mother, testified school bus no. 5 was driving over the center line and she had to drive on the shoulder of the road to avoid a collision with the school bus. Willis and Campbell stated they received complaints from people claiming school bus no. 5 ran them off the road or expressing concern that the driver of school bus no. 5 was drunk. Although Teeter claims there was no evidence he was intoxicated while driving the children and any evidence of his intoxication showed only that he was intoxicated after he drove the school bus, the children testified Teeter smelled of alcohol, was behaving out of character, spoke in a loud, slurred manner, and carried a Coca-Cola bottle that contained a clear, yellow liquid that smelled like alcohol. Also, viewing the evidence in the light most favorable to the verdict, we conclude there was evidence that Jordan C. and Christina J. were younger than 15 years at the time of the offense. Teeter's trial began on January 9, 2006 and ended on January 19, 2006. The evidence in the record specifically identifies the ages of all, but two of the children. The evidence indicates fourteen of the seventeen children were younger than 15 years at the time of the incident.² Alicia H. testified she was 15 years old at the time of the incident and stated she was the oldest child on the school bus. Tony J., Christina J.'s father, testified his daughter was 18 years old, he did not know her date of birth, and she was 14 or 15 years old at the time of the incident. Although neither Jordan C. nor Christina J. testified at trial, they were identifiable on the videotape. As a result, the jury was able to infer Jordan C. and Christina J.'s age based on Alicia H.'s and Tony J.'s testimony, the circumstances, and by comparing Jordan C.'s and Christina J.'s physical appearance and demeanor with the appearance and physical demeanor of the other children, whose ages the jury heard testimony. Teeter argues the evidence was legally and factually insufficient to support that Alicia H. was younger than 15 years at the time of offense. However, as the State points out, the record shows that Teeter's motion for new trial was granted with respect to count sixteen, which alleged Teeter endangered Alicia H. As a result, the trial court's judgment relating to count sixteen is not before us on appeal. Accordingly, we do not address Teeter's argument that the evidence is insufficient to support his conviction for endangering Alicia H. Viewing the evidence in a neutral light, we conclude there is evidence from which a fact finder could rationally conclude beyond a reasonable doubt that Teeter engaged in conduct that recklessly endangered the children and that Jordan C. and Christina J. were younger than 15 years of age at the time of the offense. The great weight and preponderance of the evidence do not contradict the jury's verdict. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Teeter's conviction for the sixteen counts of endangering a child. Teeter's first and second issues on appeal are decided against him.

III. AUTHENTICATION OF VIDEOTAPE

In his third issue, Teeter argues the trial court erred when it admitted the videotape into evidence. Teeter argues, Willis, the authenticating witness, stated he did not watch the entire videotape, he does not state which portion of the videotape he watched, and he did not have knowledge of the events recorded. The State responds that the videotape indicates the date and time it was recorded, and two of Teeter's coworkers testified regarding the installation, maintenance, inspection, operation, and security of the cameras, recorders, and videotapes.

A. Standard of Review

The standard of review for a trial court's ruling under one of the rules of evidence is an abuse of discretion. See Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App. 1998). Also, an appellate court reviews a trial court's ruling on issues of authentication for an abuse of discretion. See Page v. State, 125 S.W.3d 640, 648 (Tex.App.-Houston [1^st Dist.] 2003, pet. ref'd).

B. Applicable Law

Texas Rule of Evidence 901governs the authentication requirement for the admissibility of evidence and is the appropriate analysis for the authentication of recordings. See Tex. R. Evid. 901. Subsection (a) states the authentication requirement for the admissibility of evidence is satisfied by proof sufficient to support a finding that the matter in question is what its proponent claims it is. See Tex. R. Evid. 901(a). Subsection (b) provides a nonexclusive list of methods to authenticate evidence. See Tex. R. Evid. 901(b). Videotapes are considered in the same manner as photographs. See Tex. R. Evid. 1001(b); Williams v. State, 82 S.W.3d 557, 563 (Tex.App.-San Antonio 2002, pet. ref'd). Testimony that shows how the videotape was put into the video camera, the method for activating the video camera, the removal of the tape immediately after the offense, the chain of custody, and how the film was developed is sufficient to support a trial court's decision to admit a videotape. See Reavis v. State, 84 S.W.3d 716, 719-20 (Tex.App.-Fort Worth 2002, no pet.) (citing United States v. Taylor, 530 F.2d 639, 641-42 (5th Cir. 1976)). Also, evidence that an employee is familiar with the operation of the video camera and the date and times are indicated internally on the videotape is also sufficient to authenticate the videotape. See Reavis, 84 S.W.3d at 720 (citing United States v. Fadayini, 28 F.3d 1236, 1241 (D.C. Cir. 1994)). Additionally, when a verbal description of the crime scene is admissible, the videotape of the scene is also admissible. See Williams, 82 S.W.3d at 563.

C. Application of the Law to the Facts

Before the videotape of the school bus was admitted into evidence, Chief Nixon testified she received the videotape from Willis. She stated she viewed the videotape after receiving it from Willis, watched it again before testifying, and there were no discrepancies. Also, Chief Nixon stated she took notes the first time she watched the videotape and when she viewed the videotape before testifying the video corresponded with her notes. Chief Nixon testified regarding the chain of custody, stating that after receiving the videotape from Willis, she returned the videotape to Willis to see if he could identify the students, retrieved the videotape after one hour, and then, placed the videotape in the evidence room until giving it to the assistant district attorney. Also, before the videotape was admitted into evidence, Willis described that each school bus has a "camera eye" or lens that is located just above and to the right of the bus driver and a video cassette recorder (VCR) in a locked box that is bolted to the floor or the underside of the dashboard. Willis stated the VCRs are inspected regularly to make certain they are operating properly. He stated each VCR is activated when the school bus ignition is turned on and automatically stops when the school bus ignition is turned off. Willis retrieved the videotape from school bus no. 5, put it in his desk and gave it to Chief Nixon. Willis stated he watched the videotape after he retrieved it and again before testifying, and the videotape was in the same or similar condition and there were no additions or deletions to the videotape. Also, Willis stated Teeter was scheduled to drive school bus no. 5 on August 20, 2002, and Teeter was recorded on the videotape Willis retrieved for that day. During voir dire, Willis stated he did not know exactly where the locked box containing the VCR was located on the school bus and he was not present on the school bus when the videotape was recorded. The trial court admitted the videotape into evidence. The videotape was played for the jury. As the video was being shown to the jury, Willis explained that the video displayed the school bus number, the date, and the time. He also identified Teeter's voice on the video. During cross-examination, Willis stated that the first time he viewed the two-hour videotape was during the one hour Chief Nixon returned the videotape to him. He stated he was able to watch the two-hour video in this time frame by fast-forwarding it.³ He also stated that when he viewed the video before testifying, he viewed it during a period of thirty-five to forty minutes. However, when Teeter's counsel finished cross-examining Willis, he did not renew his objection to the admission of the videotape. Later, during the trial, eleven of the children testified describing the events that occurred on the school bus⁴ and Moericke testified regarding the installation and maintenance of the VCR equipment. The testimony of Willis showed he removed the videotape from the locked box and placed it in his desk, reviewed the videotape the day after the incident and again before testifying, and the videotape was the same or similar to what he had seen the day after the incident. Willis's testimony also described where the camera lens and locked box are located in the school bus, and how the camera and VCR were activated. Chief Nixon's detailed testimony established the chain of custody. The video display indicates it is a video of school bus no. 5 and the date and time it was recorded. Further, the children's testimony described the events that occurred on the school bus, and these events appeared on the video. We conclude the trial court did not abuse its discretion when it admitted the videotape into evidence. Teeter's third issue is decided against him.

IV. SUPPRESSION OF EVIDENCE

In his fourth issue, Teeter argues the trial court erred when it denied his motion to suppress and admitted evidence relating to the contents of his truck. The State responds that the search was allowable because in accordance with section 37.102 of the Texas Education Code, K.I.S.D. was authorized to promulgate rules, which Teeter agreed to as a condition of his employment. See Tex. Educ. Code Ann. § 37.102 (Vernon 1996). These rules prohibit the possession of alcohol and permit searches for alcohol based on "reasonable cause" as well as non-investigatory searches of personal property. Also, the State contends the alcohol containers inside Teeter's truck were in plain-view and the automobile exception applies.

A. Standard of Review

A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. See Randolph v. State, 152 S.W.3d 764, 769 (Tex.App.-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Smith v. State, 176 S.W.3d 907, 913 (Tex.App.-Dallas 2005, pet. ref'd); Randolph, 152 S.W.3d at 769. A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Randolph, 152 S.W.3d at 769. However, an appellate court reviews de novo a trial court's determination of whether a search or seizure was reasonable or supported by probable cause under the Fourth Amendment. Wiede v. State, No. PD-748-05, 2007 WL 257624, *6 (Tex.Crim.App. Jan. 31, 2007); Dixon v. State, 206 S.W.3d 613, 616 (Tex.Crim.App. 2006).

B. Applicable Law

The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures by government officials. U.S. Const. amend. IV; see also Wiede, 2007 WL 257624 at *5. Searches or seizures conducted without a warrant are unreasonable per se under the Fourth Amendment, with a few specifically defined and well-established exceptions. See Katz v. U.S., 389 U.S. 347, 357 (1967); McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003). The plain-view doctrine allows a law enforcement officer to seize evidence without a warrant when: (1) the law enforcement officer sees an item in plain view at a vantage point where he has the right to be; (2) it is immediately apparent that the item seized constitutes evidence, i.e., there is probable cause to associate the item with criminal activity; and (3) the law enforcement officer has a lawful right of access to the to the object itself. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); Horton v. California, 496 U.S. 128, 136-37 (1990); see Martinez v. State, 17 S.W.3d 677, 685 (Tex.Crim.App. 2000) (plain view from vantage point where officer had right to be and immediately apparent item constitutes evidence); see also United States v. Sparks, 291 F.3d 683, 690 (10^th Cir. 2002); United States v. Neemann, 61 F.Supp.2d 944, 954 (D. Neb. 1999). The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no "search" within the meaning of the Fourth Amendment, or at least no search independent of the initial intrusion that gave the officers their vantage point. See Illinois v. Andreas, 463 U.S. 765, 771 (1983). Not only must the officer be lawfully located in a place from which the object can be plainly seen, but the officer must also have a lawful right of access to the object itself. Horton, 496 U.S. at 137. The warrantless entry of an automobile can be justified under the automobile exception to the warrant requirement. See Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925). Under the automobile exception, a warrantless search of an automobile is not unreasonable under the Fourth Amendment when there is probable cause to believe the vehicle contains contraband or evidence of a crime. Carroll, 267 U.S. at 156; Wiede, 2007 WL 257624 at *5; Dixon, 206 S.W.3d at 619 n. 25. The warrant requirement is less rigorous with respect to vehicles because vehicles are mobile and the expectation of privacy with respect to one's vehicle is significantly less than the expectation of privacy relating to one's home or office. Wiede, 2007 WL 257624 at *5 (citing South Dakota v. Opperman, 428 U.S. 364, 367 (1976)). However, the automobile exception applies even when the vehicle is found stationary in a place not regularly used for residential purposes, but is readily capable of being used on the highways. See California v. Carney, 471 U.S. 386, 392-93 (1985); Miller v. State, 11 S.W.3d 345, 348 (Tex.App.-Houston [14^th Dist.] 1999, pet. ref'd). Justification to conduct a warrantless search of a vehicle does not depend on a reviewing court's assessment of the likelihood that the vehicle would have been driven away or its contents tampered with during the time required for the police to obtain a warrant. See Michigan v. Thomas, 458 U.S. 259, 260-61 (1982). Probable cause alone suffices to justify a warrantless search of a vehicle lawfully parked in a public place. See United States v. Sinisterra, 77 F.3d 101, 104 (5^th Cir. 1996). An officer's observation of contraband or evidence of a crime in plain view inside an automobile can be used to establish probable cause to search the automobile under the automobile exception. See Colorado v. Bannister, 449 U.S. 1, 4 (1980); Sinisterra, 77 F.3d at 105; Sparks, 291 F.3d at 690; United States v. Fladten, 230 F.3d 1083, 1086 (8^th Cir. 2000); Martinez, 17 S.W.3d at 685; see also Neemann, 61 F.Supp.2d at 954.

C. Application of the Law to the Facts

During the trial, Teeter sought to suppress Chief Nixon's testimony relating to the contents of his truck and the photographs of the contents of his truck. After the trial court denied Teeter's motion to suppress, Chief Nixon testified to the number and size of the alcohol bottles inside Teeter's truck. Photographs taken by Chief Nixon of Teeter's truck with the door open, showing the alcohol bottles, were admitted into evidence. On appeal, Teeter claims his truck was secured on school property and not searched until the day after the incident. There was adequate time to procure a warrant. He also claims the automobile exception does not apply because he was not operating his vehicle on a public street. However, Teeter concedes that Chief Nixon could observe the contents of his truck through the window. He does not dispute that Chief Nixon had a right to be in the school bus parking lot and there was probable cause to associate the alcohol bottles she observed with Teeter's alleged criminal activity. Teeter's challenge appears to argue that Chief Nixon did not have a lawful right of access to the interior of his truck, which permitted her to count the alcohol bottles and take photographs of the interior of the truck with the door open. There is no dispute from Teeter as to the first two elements of the plain-view doctrine: (1) Chief Nixon saw the alcohol bottles in plain view at a vantage point where she has the right to be; and (2) it is immediately apparent that the alcohol bottles constituted evidence. Accordingly, we review only the third element of the plain-view doctrine, i.e., whether Chief Nixon had a lawful right of access into Teeter's truck and the alcohol bottles inside. Chief Nixon was investigating Teeter's conduct and possible intoxication while driving the school bus the previous day. Chief Nixon knew the truck belonged to Teeter because she checked the vehicle's registration and the truck was registered to Teeter. See Martinez, 17 S.W.3d at 685 (officers knew from license check that vehicle registered to murder suspect). Once Chief Nixon observed the alcohol bottles in Teeter's truck, she had probable cause under the plain-view doctrine and was justified in entering Teeter's truck without a warrant under the automobile exception. Although Teeter's truck was parked in the school bus parking lot, the automobile exception is still applicable because it was found stationary in a place not regularly used for residential purposes and there was nothing preventing the vehicle from being removed. See Miller, 11 S.W.3d at 348. Accordingly, we conclude the trial court did not err when it denied Teeter's motion to suppress. We need not address the State's contention that the K.I.S.D. rules prohibited Teeter from the possessing alcohol on school grounds and authorized Chief Nixon to search for alcohol based on "reasonable cause." Teeter's fourth issue is decided against him.

V. MODIFICATION OF JUDGMENTS

Although neither Teeter nor the State has raised the issue, we note that the trial court's judgments state the statute applicable to the offense is section 22.041(b) of the Texas Penal Code. See Tex. Pen. Code Ann. § 22.041(b) (Vernon 2006). Section 22.041 is titled "Abandoning or Endangering Child." Id. § 22.041. Section 22.041(b) states that "a person commits an offense if, having custody, care or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm." However, the indictment and jury charge do not allege Teeter abandoned the children. Rather they alleged Teeter endangered the children by placing them in imminent danger of death, bodily injury, or physical or mental impairment, which tracks the language in section 22.041(c). Id. § 22.041(c). Further, the indictment does not cite a specific statute in the description of the offense. We have the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgments after the phrase "Statute for Offense" to delete "22.041(b)" and replace it with "22.041(c)."

VI. CONCLUSION

The evidence is legally and factually sufficient to support Teeter's conviction for the sixteen counts of endangering a child. Also, the trial court did not err when it admitted the videotape and evidence relating to the contents of Teeter's vehicle. The trial court's judgments are modified to reflect that the applicable statute for the offense is section 22.041(c) of the Texas Penal Code. The trial court's judgments are affirmed as modified.