Erick Bacon v. State ( 2019 )

Affirmed and Memorandum Opinion filed December 31, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00556-CR
ERICK BACON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1563156
MEMORANDUM OPINION
Appellant Erick Bacon appeals his conviction for theft of an automated teller
machine (“ATM”). He raises two issues. First, appellant argues that the trial court
abused its discretion in denying his motion to suppress surveillance video because
the video was not properly authenticated. Second, appellant argues that the trial
court abused its discretion in denying his motion for a mistrial during voir dire,
when the prosecutor “intimated” that appellant had previous convictions.
Because we conclude that the trial court did not abuse its discretion in either
regard, we affirm the trial court’s judgment.
Background
At approximately one o’clock in the morning on August 29, 2017, appellant
and several other men repeatedly rammed a vehicle into a PlainsCapital Bank
ATM located outside the bank building. The group successfully dislodged the
machine from its cement base. They attached a chain from the vehicle to the ATM
and dragged the machine out of the bank’s lot and into the street. There, after
unchaining the ATM, appellant and the other men repeatedly drove the vehicle into
the ATM in an unsuccessful attempt to force the machine open.
An eyewitness saw much of this activity from a nearby location and called
911. Police arrived on the scene, apprehended appellant, and conducted a
“showup” at a nearby gas station.1 The eyewitness identified appellant as “the
person [she] saw . . . ramming the ATM.”
A Harris County grand jury indicted appellant on the felony offense of theft
of an ATM with a value of less than $300,000.2 Appellant pleaded not guilty to the
charge.
Prior to trial, appellant moved to suppress multiple videos taken from
surveillance cameras on the bank’s premises purporting to show the theft.
Kimberly Watson, a regional operations manager for PlainsCapital Bank, was the
sole witness who testified at the suppression hearing. One of the branch locations
that Watson oversees is the location from which appellant and his accomplices
stole the ATM. Watson testified that the bank has a video surveillance system
1
A “showup,” or “live lineup,” as one officer explained at trial, occurs when an
eyewitness identifies a suspect after police detain the suspect at or near a suspected crime scene.
2
See Tex. Penal Code § 31.03(a), (e)(6)(B).
2
consisting of between seventeen and twenty-two surveillance cameras, including
between six and eight exterior cameras. A third-party vendor, Tyco Integrated
Security Company, maintains the video surveillance system.
Watson testified that shortly after the bank’s security company contacted her
on the date of the theft, she remotely logged into her work computer and watched
the surveillance videos, which captured the theft. As she watched the videos, she
saw they were date stamped August 29, 2017. Watson asserted that she knew the
time and date stamp was accurate because she “run[s] checks frequently to make
sure that transactions post to [a customer’s] bank account at the same time
[Watson] can see an ATM transaction” occur on the video system. Watson said
that the bank’s internal security department also checks the system for accuracy.
After the incident, Watson asked the bank’s security department to “pull[] [the
videos] all up,” and she then turned the videos over to the police department.
Watson also personally reviewed the videos that the State offered into
evidence at the hearing. Although those copies lacked a time and date stamp,
Watson agreed that the State’s copies are the same videos she reviewed in real-
time on August 29, 2017, and fairly and accurately represented the area depicted—
the drive-through lanes and the ATM—on August 29, 2017.
At the conclusion of Watson’s testimony, appellant argued that the
surveillance videos should be suppressed because no time and date stamp appeared
on the videos and thus “there is no way of proving that that video is the same video
that the witness saw on the night of the event.” The trial court denied appellant’s
motion.
The court proceeded to conduct voir dire, during which the State questioned
the panel members’ willingness to sentence appellant within the statutory
guidelines. The second-degree felony offense with which appellant was charged
3
carried a potential punishment range of two to twenty years’ confinement.3
However, because appellant had been convicted of two prior felonies, the State
initially intended to seek punishment in the enhanced range of twenty-five years to
life.4 During voir dire, the prosecutor explained that different classifications of
felonies carry different punishment ranges. The prosecutor stated, “So,
punishment range on this particular case is going to be a minimum of 25 years and
a maximum of life in prison.” Appellant objected and argued at a bench
conference that the State could not say “that is the punishment range [because the
prosecutor] hasn’t proved that.” The judge instructed the prosecutor to “[g]o
through the full range of punishment. It might be just a second-degree felony.”
Appellant asked the judge to instruct the jurors to disregard, to which the judge
stated that she would “let [the prosecutor] clear it up.” Appellant then moved for a
mistrial, which the court denied.
The case proceeded to trial on the merits, during which the eyewitness, three
responding police officers, and Watson testified. The jury found appellant guilty
as charged in the indictment. The trial court sentenced appellant in accordance
with an agreed recommendation of twenty years’ confinement.
Appellant timely appealed.
Analysis
A. Motion to Suppress
In his first issue, appellant argues that the trial court should have suppressed
the surveillance videos because the State failed to properly authenticate them.
3
Tex. Penal Code §§ 31.03(e)(6)(B) (theft when value of property is less than $300,000
and the property stolen is an automated teller machine or the contents or components of an
automated teller machine is a second-degree felony), 12.33(a) (punishment range for second-
degree felonies).
4
Tex. Penal Code § 12.42(d) (punishment range for habitual offenders).
4
Specifically, appellant contends that the videos were inadmissible because they
lacked distinctive characteristics, such as a date and time stamp, and because the
sponsoring witness did not have expertise or training in the equipment on which
the videos were recorded.
1. Applicable law and standard of review
Texas Rule of Evidence 901 governs the authentication requirement for the
admissibility of evidence:
(a) In General. To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent
claims it is.
Tex. R. Evid. 901(a).
A party may establish authenticity with evidence of “distinctive
characteristics and the like,” which include “[t]he appearance, contents, substance,
internal patterns, or other distinctive characteristics of the item, taken together with
all the circumstances.” Tex. R. Evid. 901(b)(4). Conclusive proof of authenticity
before allowing admission of disputed evidence is not required. See Fowler v.
State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). Rule 901 “merely requires
some evidence sufficient to support a finding that evidence in question is what the
proponent claims.” Id. (internal quotation omitted).
We review a trial court’s ruling on suppression and authentication issues
under an abuse of discretion standard. Id.; see also Barfield v. State, 416 S.W.3d
743, 749 (Tex. App.—Houston [14th Dist.] 2013, no pet.). This deferential
standard requires an appellate court to uphold a trial court’s admissibility decision
when that decision is within the zone of reasonable disagreement. Fowler, 544
S.W.3d at 848. A trial court judge is given considerable latitude with regard to
evidentiary rulings. Id. Different trial judges may “reach different conclusions in
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different trials on substantially similar facts without abus[ing] [their] discretion.”
Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007).
If the trial court’s ruling that a jury could reasonably find proffered evidence
authentic is at least “within the zone of reasonable disagreement,” a reviewing
court should not interfere. Hunter v. State, 513 S.W.3d 638, 640 (Tex. App.—
Houston [14th Dist.] 2016, no pet.). In Butler v. State, the Court of Criminal
Appeals clarified that “it is the jury’s role ultimately to determine whether an item
of evidence is indeed what its proponent claims; the trial court need only make the
preliminary determination that the proponent of the item has supplied facts
sufficient to support a reasonable jury determination that the proffered evidence is
authentic.” Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015); see also
Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).
2. Application
The State presented the following circumstantial evidence to authenticate the
video recordings:
• Watson’s testimony that she logged into her work computer, accessed
a computer program that allowed her to view video of “a specific time
and date,” and watched surveillance video of the ATM lane outside of
the bank;
• Watson’s testimony that when she first watched the videos on August
29, 2017, the videos were time and date stamped, showing the ATM
lane on August 29, 2017;
• Watson’s testimony that she regularly checks the accuracy of the time
and date stamp on the surveillance video system;
• Watson’s testimony that the videos offered by the State were the same
videos she viewed on the day of the theft, except for the omission of
the time and date stamp; and
• Watson’s testimony that the videos accurately represented the bank’s
outside drive-through lanes and the ATM on August 29, 2017.
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We conclude that the State supplied facts via Watson’s testimony sufficient
to support a reasonable jury determination that the videos were an authentic
representation of the ATM lane on August 29, 2017. Accord, e.g., Thierry v. State,
288 S.W.3d 80, 89 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (holding
videotape of surveillance footage authenticated through loss prevention officer not
present at the time of the incident when loss prevention officer described the
surveillance system and how it worked, testified he had personally copied the
surveillance onto videotape, viewed the tape prior to his testimony, and testified it
fairly and accurately represented what it purported to show). While the State could
have presented additional testimony from other witnesses who may have
authenticated the video recordings independently of Watson, such as a video
technician from the third-party security vendor in charge of maintaining the
system, we disagree with appellant’s contention that the State’s attempt to
authenticate the videos based solely on Watson’s testimony is insufficient. “[A]
zone of reasonable disagreement is exactly that—a zone,” Fowler, 544 S.W.3d at
850, and we conclude that the trial court’s decision here falls well within in it.
Accordingly, the trial court did not abuse its discretion in denying appellant’s
motion to suppress the surveillance videos. We overrule appellant’s first issue.
B. Motion for Mistrial
In his second issue, appellant complains that the State violated appellant’s
fundamental right to a fair trial under article 36.01 of the Texas Code of Criminal
Procedure because the prosecutor “intimated to the jury during voir dire that
Appellant had previous felony convictions by telling the jury that in this specific
case Appellant’s punishment range was 25 years to life.”5
5
Appellant also contends that he was denied a fair trial under the Fourteenth Amendment
to the United States Constitution, but he does not cite any authority to support the notion that the
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1. Applicable law and standard of review
Both the State and the defense are entitled to question the jury panel on their
willingness to follow the applicable law relating to enhanced punishments. See
Ganther v. State, 187 S.W.3d 641, 652 (Tex. App.—Houston [14th Dist.] 2006,
pet. ref’d) (citing Martinez v. State, 588 S.W.2d 954, 956 (Tex. Crim. App. [Panel
Op.] 1979)). Such examinations, however, are subject to limits. Article 36.01 of
the Texas Code of Criminal Procedure provides:
The indictment or information shall be read to the jury by the attorney
prosecuting. When prior convictions are alleged for purposes of
enhancement only and are not jurisdictional, that portion of the
indictment or information reciting such convictions shall not be read
until the hearing on punishment is held as provided in Article 37.07.
Tex. Code Crim. Proc. art. 36.01(a).
Thus, “a prosecutor may inform the jury panel of the range of punishment
applicable if the State were to prove a prior conviction for enhancement purposes,
but it may not inform the jury of any of the specific allegations contained in the
enhancement paragraph of a particular defendant’s indictment.” Frausto v. State,
642 S.W.2d 506, 509 (Tex. Crim. App. [Panel Op.] 1982). A violation of article
36.01 is reversible error. Id. at 508.
A mistrial is a device used to halt trial proceedings when error occurring
during trial is so prejudicial that expenditure of further time and expense would be
wasteful and futile. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009)
(per curiam). A mistrial is appropriate only in extreme circumstances “for a
narrow class of highly prejudicial and incurable errors.” Ocon v. State, 284
federal constitution provides different or greater protection than that afforded under article 36.01
in a situation such as this, and so we do not address his constitutional complaint. See McDonald
v. State, No. 14-04-00401-CR, 2005 WL 1690615, at *1 (Tex. App.—Houston [14th Dist.] July
21, 2005, no pet.) (mem. op., not designated for publication).
8
S.W.3d 880, 884 (Tex. Crim. App. 2009). Whether a mistrial is required depends
on the facts of the case. Id. A trial court should grant a mistrial “only when
residual prejudice remains after less drastic alternatives are explored.” Id. at 884-
85 (internal quotation omitted). A mistrial should be exceedingly uncommon. See
Hudson v. State, 179 S.W.3d 731, 738 (Tex. App.—Houston [14th Dist.] 2005, no
pet.). A denial of a motion for mistrial is reviewed under an abuse of discretion
standard, and we must uphold a trial court’s ruling if it was within the zone of
reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App.
2010); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
2. Application
Appellant does not contend and the record does not show that the prosecutor
mentioned his prior convictions in any way. Rather, appellant posits that the
prosecutor, by mentioning a sentencing range applicable to a multiple felony
offender, “intimated” to the venire panel that appellant had previous convictions.
According to appellant, by conveying to the venire panel that appellant faced a
sentence between twenty-five years to life, “the prosecutor divulged information
that an astute juror would understand that Appellant’s punishment was . . . the
result of prior convictions.”
We disagree that the prosecutor’s statement violated article 36.01 in this
context. The prosecutor did not reference prior convictions or mention the State
was seeking an “enhanced sentence,”6 much less “recount[] virtually all of the
allegations contained in the enhancement paragraph of the indictment.” Frausto,
642 S.W.2d at 508. The prosecutor made no statement suggesting how or why the
punishment range mentioned initially applied. Even presuming that a
6
As set forth above, the prosecutor stated during voir dire, “So, punishment range on this
particular case is going to be a minimum of 25 years and a maximum of life in prison.”
9
veniremember was familiar enough with the Texas Penal Code to know that the
punishment range for the offense charged was between two and twenty years’
confinement, and further would have deduced from the prosecutor’s reference to
twenty-five years to life that the State was alleging that appellant had committed
other felonies, that circumstance would not warrant a mistrial. There was no
danger of prejudicing the venire panel by announcing that the State believed
appellant “was previously convicted of a particular offense at a particular time and
in a particular court.” Id.; see also Rushing v. State, No. 08-05-00365-CR, 2007
WL 2405797, at *5 (Tex. App.—El Paso Aug. 23, 2007, pet. ref’d) (mem. op., not
designated for publication) (“The prosecutor’s comment that ‘probation is not an
issue’ did not violate Article 36.01 or exceed what is permissible under Frausto
because, even assuming that the potential jurors would necessarily have understood
that probation was unavailable because Appellant had a prior conviction, it did not
inform the jury of the specifics of the prior conviction.”).
We conclude that the trial court did not abuse its discretion in denying
appellant’s motion for mistrial, and accordingly we overrule appellant’s second
issue.
Conclusion
We affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).
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