Miguel Chatman v. State of Texas ( 2011 )

Opinion filed August 31, 2011
In The
Eleventh Court of Appeals
__________
No. 11-10-00044-CR
__________
MIGUEL CHATMAN, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR35769
MEMORANDUM OPINION
Miguel Chatman appeals his conviction by a jury of the offense of murder. The jury
assessed his punishment at seventy-five years in the Texas Department of Criminal Justice,
Institutional Division, and a fine of $10,000. We affirm.
Chatman was first arrested on the charges in this case in Roby, Texas, and was placed in
the Fisher County jail. Chatman allegedly made various telephone calls while in that jail. He
was later transferred to the Midland County jail. The State also claims that he made telephone
calls from that jail also. Calls from the Fisher County jail, as well as calls from the Midland
County jail, were recorded. The trial court admitted into evidence CDs that purportedly
contained excerpts from those calls. In a single issue, Chatman contends that the trial court
abused its discretion when it admitted those CDs into evidence.
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. EVID. 901(a). Rule 901 includes illustrative and non-
exhaustive examples of authentication or identification conforming with the requirements of the
rule. Rule 901(b). Evidence can be authenticated or identified by distinctive characteristics and
the like, as well as by appearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances. Rule 901(b)(4). A voice can be
identified, whether heard firsthand or through mechanical or electronic transmission or
recording, by opinion based upon hearing the voice at any time under circumstances connecting
it with the alleged speaker. Rule 901(b)(5).
Ray Weatherby, a sergeant in the Midland County Sheriff’s Department, testified that the
Midland County jail has a recording system to record phone calls. He related that the system
records every time a phone call is made in the jail. He said that every time a phone call is made
there is a notice that the phone call is recorded. He identified CityTel as the company through
which the county contracts the system.
Sergeant Weatherby testified that the calls can be obtained by reference to a specific
telephone number or a specific area of the cells. He indicated that the recordings are kept in the
regular course of business and are made at or near the time the phone call is actually made. With
respect to the method of storage, Sergeant Weatherby said that the recording is made on a device
capable of making an accurate recording if somebody else wanted to download it.
Robin Elizabeth Cleveland testified that she is the jail administrator for the Fisher County
Sheriff’s Office in Roby. She indicated that, as part of her duties, she is in charge of the
operations of the phone systems. Although only recently assuming the job of jail administrator,
Cleveland stated that she was somewhat familiar with how the recording system in the jail
works. She related that the phone system goes through a switch at the corporate office for Oliver
Company when the inmates have individual pin numbers. She said there is one phone that
inmates have to share with their cellmates. She confirmed that, before each call is completed,
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the individual is advised that the phone call may be monitored or recorded. She affirmed that the
calls are recorded “through the Dallas office.”
Cleveland testified that, once a call has been recorded, someone from Fisher County is
able to get access to the recordings. She said they are accessed from the internet through the
Oliver Company. She indicated that the calls, which are recorded at the same time they are
made, are made and kept in the normal course of business. She insisted that the recording
system is set up so that it is able to make an accurate recording of the phone call as it is being
made. She said that, to her knowledge, the system had been working properly since January
2009.
Bill Anderson testified that he is a detective with the Midland Police Department. He
said that, with respect to a murder at a club called Pleasures, another detective gave him a list of
phone numbers related to suspects in custody. He indicated that he retrieved some of the phone
calls from or to those numbers and turned them over to the detective who had given him the
numbers. Detective Anderson testified that he reviewed State’s Exhibit No. 142. He indicated
that the excerpt he reviewed matched the CD that had his handwriting on it from the jail phone
calls he had downloaded. He said he verified that by listening to the original to make sure the
excerpt was the same. He stated that the voice on the call is purported to be Chatman and a
female.
Sheldon Johnson, a detective with the Midland Police Department, testified that he had
reviewed recordings marked as State’s Exhibits 140 and 141, which he had received from the
Fisher County Sheriff’s Office. He stated that they were excerpts of conversations between
Chatman and other individuals. He said they were fair and accurate recordings of the excerpts
“that are taken off.” He confirmed that nothing had been added to or removed from the
statements actually on the discs.
James Timothy Braziel testified that he had known Chatman most of his life. He said
that, upon listening to State’s Exhibit Nos. 140, 141, and 142, he was able to identify the male
voice on the CDs as Chatman and the female voice as Jasmine.
The State offered the CDs as telephone conversations made by Chatman while he was in
the Fisher County and Midland County jails. The evidence presented showed that the CDs in
question were telephone conversations between Chatman and a female while he was in custody
at the Fisher County jail and the Midland County jail. Evidence was presented indicating that
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they came from the respective telephone systems, which produce accurate recordings. We hold
that State’s Exhibit Nos. 140, 141, and 142 were sufficiently authenticated and identified and
that the trial court did not abuse its discretion in admitting them into evidence.
Chatman presents several bases for suggesting that the recordings were not properly
authenticated. These include: (1) Sergeant Sergeant Weatherby could not identify the name of
the company with whom the Midland County Sheriff’s Department contracted at the time
Chatman’s phone calls were recorded while Chatman was in the Midland County jail; (2) no one
from a company operating one of the telephone systems testified; (3) Cleveland was not
responsible for either the operation or the maintenance of the telephone recording system utilized
to record jail inmate conversations and was not serving in the capacity of jail administrator for
the Fisher County jail at the time of Chatman’s incarceration but was just a jail dispatcher; (4) no
one testified as to the factual accuracy of the recordings or the lack of changes, additions, or
deletions; and (5) the persons who testified in support of the admission of the recordings were
not custodians or other qualified witnesses as required by Texas Rule of Evidence 803(6).
With respect to Chatman’s representation that no one testified as to the factual accuracy
of the recordings, we note that Cleveland testified that the Fisher County jail recording system is
set up so that it is able to make an accurate recording of a phone call as it is being made and that,
to her knowledge, the system had been working properly since January 2009. We find that
Cleveland’s employment capacity at the time the calls were made is irrelevant given the fact that
she was the jail administrator at the time of her testimony. As noted in Chatman’s brief,
Sergeant Weatherby said the recordings in Midland County are made on a device capable of
making an accurate recording if somebody else wanted to download it. While Chatman suggests
that this testimony should be interpreted to mean that the system permitted accurate copies to be
made, as opposed to testimony that the device itself was capable of accurately recording the
actual telephone conversations, we believe that the jury could reasonably interpret
Sergeant Weatherby’s testimony as meaning that the device accurately recorded the telephone
conversations.
We also find that Chatman’s allegation that the authentication was not supported by the
custodian of the recordings or another qualified witness is unfounded. At the time of her
testimony, Cleveland was the jail administrator for Fisher County and was in charge of the
operation of the phone system there. Sergeant Weatherby’s testimony indicated a familiarity
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with the Midland County phone system. We find him to be a qualified witness within the
meaning of Rule 803(6).
Chatman suggests that, in order to authenticate the calls, the State was obligated to show
that there had been no changes, additions, or deletions to the exhibits. He relies on a federal
case, Pettiford v. City of Greensboro, 556 F. Supp. 2d 512 (M.D.N.C. 2008). In that case, the
court held that certain audiotapes were inadmissible, noting that the proponent did not lay a
sufficient foundation for recognition of the speakers’ voices, that the source of the recordings
and the manner in which they were made were not indicated, and that their preservation was not
indicated to show that no changes, additions, and deletions were made. Id. at 532. As authority,
the district court cited the case of United States v. Branch, 970 F.2d 1368 (4th Cir. 1992). In
Branch, the court listed the factor of showing that no changes, additions, or deletions have been
made as one of the factors that, it said, are to provide guidance to the trial court when called to
make rulings on authentication issues, but the court held that each of the factors need not be
shown in every case. Id. at 1371-72. As noted in Branch, the issue is whether the testimony is
sufficient to show that the recordings are what the State claims them to be: recordings of
conversations by Chatman while he awaited trial. We hold that evidence to be sufficient, despite
any suggested lack of evidence relating to changes, additions, or deletions. We note that there is
no evidence that there have been any such changes, additions, or deletions.
Inasmuch as the evidence is sufficient to show that the recordings are what the State
represents them to be, we hold there is no requirement for testimony from a representative of the
company that operates the system for the county involved. We also do not find any requirement
that a particular witness know the name of the company that operated the system when the
recordings were made. We overrule Chatman’s sole issue on appeal.
The judgment is affirmed.
PER CURIAM
August 31, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1
1
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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