Davis, Johnnie v. State ( 2004 )

Affirmed and Memorandum Opinion filed February 5, 2004

Affirmed and Memorandum Opinion filed February 5, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00397-CR

NO. 14-03-00398-CR

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JOHNNIE DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause Nos. 911,909, 911,910

M E M O R A N D U M O P I N I O N

Appellant Johnnie Davis appeals from his convictions for the felony offenses of possession with intent to deliver a controlled substance, namely cocaine, and aggravated robbery. He presents two issues for review, both relating to alleged errors committed by the trial court during the punishment phase.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4.  We affirm.

Appellant waived a jury and entered a plea of guilty to both of the above charged offenses without an agreed sentencing recommendation on September 18, 2002.  Following completion of a pre-sentence investigation report, the trial court found appellant guilty  as to both charges on March 24, 2003.  The trial court assessed punishment at forty years= confinement and a fine in the amount of $10,000 for the former offense and forty years= confinement for the latter, with the sentences to run concurrently.

In his first issue, appellant argues the trial court committed reversible error in admitting the audiotape recording because it was not properly authenticated in accordance with the Texas Rules of Evidence.  We review a trial court=s decision to admit evidence for abuse of discretion. Resendiz v. State, 112 S.W.3d 541, 544 (Tex. Crim. App. 2003).  We will not reverse that decision unless it falls outside the zone of reasonable disagreement.  Id.

A party may satisfy the authentication requirement for admissibility by presenting evidence sufficient to Asupport a finding that the matter in question is what its proponent claims.@  Tex. R. Evid. 901(a); Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998).  Rule 901(b) provides illustrations of ways in which the proponent of evidence may satisfy the authentication requirement, including, inter alia, testimony of a witness with knowledge and voice identification.  See Tex. R. Evid. 901(b)(1) and (5).  The trial court=s decision to admit the evidence will be sustained if it is reasonably supported by the record and correct on any theory of law applicable to the case.  Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

At the hearing, the State presented evidence to authenticate the audiotape.  As a result of the testimony of the witness Allister Cotton, the State satisfied both of the methods mentioned above for authenticating the evidence at issue.  Through Cotton=s testimony that: (1) identified the audiotape, (2) he was the person who made the audiotape, and (3) the audiotape was an accurate recording of a conversation that took place on May 11, 2002, the State presented the testimony of a witness with knowledge.  Cotton also testified as to the identities of the voices on the audiotape, thus authenticating the evidence at issue by voice identification as well. Because the audiotape was authenticated by either the testimony of a witness with knowledge or voice identification, the trial court did not abuse its discretion in admitting it into evidence.^[1]  Accordingly, appellant=s first issue is overruled.

In his second issue, appellant argues the trial court erred during the punishment phase in considering evidence of an extraneous offense which the State failed to show beyond a reasonable doubt.  He contends the State failed to corroborate, in accordance with Section 15.03(b) of the Texas Penal Code, the testimony of Cotton and Santillan to commit capital murder.  The State counters by arguing there is no corroboration requirement during the punishment phase.  We agree with the State=s contention.

Section 15.03(b) of the Texas Penal Code provides:

A person may not be convicted under this section on the uncorroborated testimony of the person allegedly solicited and [sic] unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor=s intent that the other person act on the solicitation.

The Court of Criminal Appeals has previously noted that this subsection is a legislative creation, and thus not a constitutional mandate. See Richardson v. State, 700 S.W.2d 591, 594 (Tex. Crim. App. 1985).  Therefore, the decision to either expand or restrict its scope lies within the authority of the Legislature B not the courts. Vasquez v. State, 56 S.W.3d 46, 48  (Tex. Crim. App. 2001).

The very terms of Section 15.03(b) convey its limited scope.  They serve to prevent the conviction of a person for the crime detailed in subsection (a) under certain circumstances.  In this case, the State offered the testimony of Cotton and Santillan during the punishment stage.  Because at that stage the issue was not appellant=s guilt but the proper punishment to be assessed for his convictions for delivery of a controlled substance and aggravated robbery, the testimony presented would not have contributed to the conviction of appellant for criminal solicitation.  Therefore, we hold the corroboration requirement provided in Section 15.03(b) is inapplicable during the punishment phase of trial.^[2]

Thus, the only remaining inquiry is whether the trial court erred in considering evidence that appellant solicited Cotton and Santillan to commit capital murder.  The State may offer evidence of any relevant extraneous crime if it is shown to have been committed by the defendant beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon 1981).  Since the trial court permitted the State=s evidence, it implicitly found proof of appellant=s guilt beyond a reasonable doubt.  Appellant argues the State failed to meet its burden of proof.

In evaluating legal sufficiency of the evidence, we must view the evidence in the light most favorable to the finding and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Reyes v. State, 84 S.W.3d 633, 636 (Tex. Crim. App. 2002).  A person commits the offense of criminal solicitation if: (1) with the intent that a capital or first-degree felony be committed, (s)he (2) requests, commands or attempts to induce another (3) to engage in specific conduct that, under the circumstances surrounding his (her) conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission. Tex. Pen. Code Ann. ' 15.03(a) (Vernon 1994).

Santillan testified that, during a May 11 conversation, appellant told him the witnesses Aneed to be taken care of@ and Aneed to be gone.@  According to Santillan, appellant then wrote the amount of 10,000 dollars on a slip of paper and slid it over toward him.  Santillan testified he understood these circumstances to mean that appellant was offering him an amount of 10,000 dollars for each witness he killed.  We hold the evidence is legally sufficient to find appellant committed the offense of criminal solicitation of capital murder.  The trial court therefore did not err in its consideration of such evidence during the punishment phase.  Accordingly, appellant=s second issue is overruled.

The judgment is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed February 5, 2004.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We note that while appellant stresses Larry Williams= testimony that there were anomalies in the recordings, this argument addresses the weight, rather than the admissibility, of the evidence. See Porter v. State, 969 S.W.2d 60, 66 (Tex. App.CAustin 1998, pet. ref=d).

^[2]  The Court of Criminal Appeals has applied similar analysis in interpreting an Aanalogous@ statute. See Jones v. State, 982 S.W.2d 386, 395 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985 (1999); Ganesan v. State, 45 S.W.3d 197, 201 (Tex. App. CAustin 2001, pet. ref=d).