Craig Sanders v. State ( 2018 )

Opinion issued August 30, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00113-CR
———————————
CRAIG SANDERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 16CR1430
MEMORANDUM OPINION
A jury found appellant, Craig Sanders, guilty of the felony offense of evading
arrest, or detention, in a motor vehicle.1 After he pleaded true to the allegations in
1
See TEX. PENAL CODE ANN. § 38.04 (Vernon 2016).
two enhancement paragraphs that he had twice been previously convicted of felony
offenses, the jury assessed his punishment at confinement for forty-five years. In
two issues, appellant contends that the evidence is insufficient to support his
conviction and the trial court erred in admitting certain evidence.
We affirm.
Background
Texas City Police Department (“TCPD”) Officer C. Ham testified that on May
26, 2016, while on patrol around midnight, he performed a “keep check” of the
parking lot of the Economy Lodge hotel in Galveston County, Texas to “check[] for
any illegal activity or . . . anything that need[ed] to be addressed.” (Internal
quotations omitted.) As he drove his patrol car through the parking lot, Ham saw a
parked car, a silver Chrysler Sebring (the “silver car”), with “back-end damage” and
an expired registration. Ham subsequently left the Economy Lodge hotel’s parking
lot, drove “half a block,” and parked his patrol car in the parking lot of a hair salon.
As Officer Ham sat in his parked patrol car, he saw the silver car exit the
parking lot of the Economy Lodge hotel and drive down the road. Because Ham
knew that the car had an expired registration, he followed it in his patrol car so that
he could make a traffic stop. As Ham drove a short distance behind the silver car
with his patrol car’s emergency lights activated, the silver car continued on. After
the silver car made a sudden turn, Ham “bumped [his patrol car’s] siren . . . a couple
2
of times” to get the driver’s attention. The silver car then accelerated quickly and
“took off.”
After the silver car had driven a little farther, Officer Ham saw the driver’s
side door of the car open and the driver jump out and start running. The driver of
the silver car was “a black male[,] wearing a black shirt with some white lettering
on it” and black shorts, with white trim. Ham stopped his patrol car and attempted
to follow the driver; however, he stopped his pursuit when he heard the silver car hit
a curb and start rolling backwards “through the roadway and toward[] some parked
cars.” Other law enforcement officers subsequently arrived at the scene, but they
did not locate the driver.
Officer Ham returned to the Economy Lodge hotel at around 1:43 a.m. to view
its surveillance videotape recording from that night. After speaking with the hotel
clerk, Rhitejak Nikhil Ingreji, Ham viewed the videotape recording. He saw “a
subject come out of . . . [r]oom 236” and “walk directly towards the camera,”
wearing the same clothing2 that Ham had seen the driver of the silver car wearing
when he “jumped out of the car and ran.” The person in the videotape recording
then walked downstairs, got into the silver car, and drove around the hotel’s parking
lot to leave.
2
Officer Ham described the person in the videotape recording as “a black male,
wearing a black [t]-shirt with white logos on the front, with black shorts with white
trim.”
3
After viewing the surveillance videotape recording, Officer Ham proceeded
to room 236. A woman answered the door, and Ham received consent to enter the
room. He then saw a pair of shorts and “a black [t]-shirt laying on the foot of the
bed,” which matched the ones worn by the driver of the silver car. Ham noted that
the black shirt was “fairly wet . . . maybe from sweating.” When appellant exited
the bathroom in the room, he appeared “a little winded,” was sweating, and was not
wearing a shirt.
Officer Ham further testified that he first saw the black shirt that he found in
room 236 when the driver of the silver car “jumped out of the [car] and took off
running.” He next saw the black shirt while viewing the surveillance videotape
recording from the Economy Lodge hotel. He then saw the same black shirt on the
floor of room 236, after the woman answered the hotel room door. The trial court
admitted into evidence the actual black shirt and shorts collected by Ham from the
Economy Lodge hotel room. Ham noted that the silver car was registered to a person
named Fabio Mejia.
During Officer Ham’s testimony, the trial court admitted into evidence State’s
Exhibit 3, the videotape recording from Ham’s patrol car. In that videotape
recording, a black male, wearing a black shirt, with a white logo, and dark shorts,
with white trim, can be seen exiting a silver car and running away. The trial court
also admitted into evidence State’s Exhibits 1A and 1B, the surveillance videotape
4
recording from the Economy Lodge hotel. In that videotape recording, a black male,
wearing a black shirt, with a white logo, and dark shorts, with white trim, can be
seen exiting a hotel room, getting into a silver car parked in the hotel’s parking lot,
and driving away. While watching the surveillance videotape recording during trial,
Ham noted that at 12:30 a.m. on May 26, 2016, the driver of the silver car can be
seen getting into the car. At 12:32 a.m., the silver car is shown exiting the Economy
Lodge hotel’s parking lot. And at 12:33 a.m., Ham attempted to stop the silver car.
Sufficiency of Evidence
In his first issue, appellant argues that the evidence is insufficient to support
his conviction because it “conclusively establishes a reasonable doubt concerning
his identity as the driver of the [silver car]” and “there is only a modicum of evidence
linking the driver of the [silver car] to motel room 236.”
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–
89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role
is that of a due process safeguard, ensuring only the rationality of the trier of fact’s
finding of the essential elements of the offense beyond a reasonable doubt. See
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference
5
to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh
evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at
750. However, our duty requires us to “ensure that the evidence presented actually
supports a conclusion that the defendant committed” the criminal offense of which
he is accused. Id.
We note that in reviewing the sufficiency of the evidence, a court must
consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. See Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007); see also Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012) (evidence-sufficiency standard of review same for both direct and
circumstantial evidence). Circumstantial evidence is just as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can
be sufficient to establish guilt. See Clayton, 235 S.W.3d at 778; Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). For evidence to be sufficient, the State
need not disprove all reasonable alternative hypotheses that are inconsistent with a
defendant’s guilt. See Wise, 364 S.W.3d at 903; Cantu v. State, 395 S.W.3d 202,
207–08 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). Rather, a court considers
only whether the inferences necessary to establish guilt are reasonable based upon
the cumulative force of all the evidence when considered in the light most favorable
to the jury’s verdict. Wise, 364 S.W.3d at 903; Hooper, 214 S.W.3d at 13.
6
A person commits the offense of evading arrest, or detention, “if he
intentionally flees from a person he knows is a peace officer . . . attempting lawfully
to arrest or detain him.” TEX. PENAL CODE ANN. § 38.04(a) (Vernon 2016). If the
person “uses a vehicle” while “in flight,” the offense is a third-degree felony. Id.
§ 38.04(b)(2)(A). A person commits the offense “only if he knows a [law
enforcement] officer is attempting to arrest [or detain] him but nevertheless refuses
to yield to a police show of authority.” Redwine v. State, 305 S.W.3d 360, 362 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d); see also Hobyl v. State, 152 S.W.3d
624, 627 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d). The State may prove
a defendant’s identity by either direct or circumstantial evidence, coupled with all
reasonable inferences from that evidence. Gardner v. State, 306 S.W.3d 274, 285
(Tex. Crim. App. 2009); Conelly v. State, 451 S.W.3d 471, 475 (Tex. App.—
Houston [1st Dist.] 2014, no pet.).
Here, Officer Ham testified that on May 26, 2016, while on patrol around
midnight, he performed a “keep check” of the parking lot at the Economy Lodge
hotel. (Internal quotations omitted.) As he drove his patrol car through the parking
lot, he saw the silver car with “back-end damage” and an expired registration. Ham
then left the Economy Lodge hotel’s parking lot, drove “half a block,” and parked
his patrol car in the parking lot of a hair salon.
7
Officer Ham subsequently saw the silver car exit the parking lot of the
Economy Lodge hotel and drive down the road. Because Ham knew that the car had
an expired registration, he followed it in his patrol car so that he could make a traffic
stop. Ham drove a short distance behind the silver car with his patrol car’s
emergency lights activated, but the silver car continued on. After the silver car made
a sudden turn, Ham “bumped [his patrol car’s] siren . . . a couple of times” to get the
driver’s attention. The silver car then accelerated quickly and “took off.”
After the silver car had driven a little farther, Officer Ham saw the driver’s
side door of the car open and the driver jumped out and start running. The driver of
the silver car was “a black male[,] wearing a black shirt with some white lettering
on it” and black shorts, with white trim. Neither Ham nor any other law enforcement
officer that arrived at the scene was able to locate the driver.
Officer Ham subsequently returned to the Economy Lodge hotel at around
1:43 a.m. and viewed the surveillance videotape recording from that night. While
viewing the videotape recording, he saw a person “come out of . . . [r]oom 236” and
“walk directly towards the camera,” wearing the same clothing that Ham had seen
the driver of the silver car wearing when he “jumped out of the car and ran.” The
person, “a black male[,] wearing a black [t]-shirt with white logos on the front, with
black shorts with white trim,” walked downstairs to the silver car, got in the car, and
drove around the hotel’s parking lot to leave.
8
After viewing the surveillance videotape recording, Officer Ham proceeded
to room 236, i.e., the room from which he saw the driver of the silver car leaving. A
woman answered the door, and Ham received consent to enter the room. He then
saw a pair of shorts and “a black [t]-shirt laying on the foot of the bed,” both of
which matched the ones worn by the driver of the silver car. Ham noted that the
black shirt was “fairly wet . . . maybe from sweating.” When appellant exited the
bathroom in the hotel room, he appeared “a little winded,” was sweating, and not
wearing a shirt.
During Officer Ham’s testimony, the trial court admitted into evidence State’s
Exhibit 3, the videotape recording from Ham’s patrol car. In that videotape
recording, a black male, wearing a black shirt, with a white logo, and dark shorts,
with white trim, can be seen exiting a silver car and running away. The trial court
also admitted into evidence State’s Exhibits 1A and 1B, the surveillance videotape
recording from the Economy Lodge hotel. In that videotape recording, a black male,
wearing a black shirt, with a white logo, and dark shorts, with white trim, can be
seen exiting a hotel room, getting into a silver car that is parked in the hotel’s parking
lot, and driving away. While watching the surveillance videotape recording during
trial, Ham testified that at 12:30 a.m. on May 26, 2016, the driver of the silver car
can be seen getting into the car. At 12:32 a.m., the silver car is shown exiting the
9
Economy Lodge hotel’s parking lot. And at 12:33 a.m., Ham attempted to stop the
silver car.
According to Officer Ham, he first saw the black shirt that he found in room
236 when the driver of the silver car “jumped out of the [car] and took off running.”
He next saw the black shirt while viewing the surveillance videotape recording from
the Economy Lodge hotel. He then saw the same black shirt on the floor of room
236, after the woman answered the hotel room door. The trial court admitted into
evidence at trial photographs of the black shirt and shorts found on the floor of room
236, and the actual articles of clothing collected by Ham from the hotel room.
The jury, as the trier of fact, is the sole judge of the credibility of the witnesses
and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.
Crim. App. 1999); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).
And we defer to the jury to resolve conflicts in the evidence, weigh the evidence,
and draw reasonable inferences from it. Hooper, 214 S.W.3d at 13.
Here, the jury was able to compare appellant and the actual clothing items that
were recovered from the Economy Lodge hotel room with the person and the
clothing items seen in the videotape recordings and photographs that were admitted
into evidence. See Flowers v. State, 220 S.W.3d 919, 925 (Tex. Crim. App. 2007);
see, e.g., Stubblefield v. State, No. 01-16-00644-CR, 2017 WL 2645040, at *4 (Tex.
App.—Houston [1st Dist.] June 20, 2017, no pet.) (mem. op., not designated for
10
publication) (fact finder could compare man seen in videotape recordings and
photographs to defendant in courtroom); Perales v. State, No. 02-13-00458-CR,
2014 WL 3778275, at *2 (Tex. App.—Fort Worth July 31, 2014, no pet.) (mem. op.,
not designated for publication) (evidence sufficient to identify defendant as burglar
where videotape recording displayed several characteristics of defendant and fact
finder able to compare man in footage with defendant in courtroom); Conyers v.
State, 864 S.W.2d 739, 741 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d) (jury
could compare photographs admitted into evidence with appearance of defendant).
Further, although appellant asserts that “the only evidence linking [him] to the
offense is circumstantial,” circumstantial evidence, as previously noted, is just as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. See Clayton, 235 S.W.3d at 778;
Hooper, 214 S.W.3d at 13; see also Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim.
App. 1986) (“Evidence as to the identity of the perpetrator of an offense can be
proved by direct or circumstantial evidence.”).
Viewing all of the evidence in the light most favorable to the jury’s verdict,
we conclude that a rational trier of fact could have found the essential elements of
the offense of evading arrest, or detention, in a motor vehicle beyond a reasonable
doubt. See TEX. PENAL CODE ANN. § 38.04. Accordingly, we hold that the evidence
is sufficient to support appellant’s conviction.
11
We overrule appellant’s first issue.
Admission of Evidence
In his second issue, appellant argues that the trial court erred in admitting into
evidence State’s Exhibits 1A and 1B, the surveillance videotape recording from the
Economy Lodge hotel, because “[t]he affidavit intending to authenticate” the
videotape recording failed to do so and he was harmed by the admission of the
evidence.3 See TEX. R. EVID. 902(10) (self-authenticating evidence).
We review a trial court’s ruling on the admission of evidence for an abuse of
discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker
3
We note that the State, in its brief, asserts that appellant did not preserve his
admission-of-evidence complaint for appellate review because “[h]is argument on
appeal does not comport with any of his trial objections.” To preserve the issue of
erroneously admitted evidence, a party must make a timely and specific objection
and obtain a ruling from the trial court. TEX. R. APP. P. 33.1(a); Martinez v. State,
98 S.W.3d 189, 193 (Tex. Crim. App. 2003); see also Thomas v. State, 505 S.W.3d
916, 924 (Tex. Crim. App. 2016) (party must state grounds for objection with
enough specificity to make trial court aware of complaint). A party “must be
specific enough so as to ‘let the trial [court] know what he wants, why he thinks
himself entitled to it, and do so clearly enough for the [trial court] to understand him
at a time when the trial court is in a proper position to do something about it.’”
Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009) (quoting Lankston
v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). A party also fails to
preserve error when the contention urged on appeal does not comport with the
specific complaint made in the trial court. See Thomas, 505 S.W.3d at 924; Lovill
v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009). Here, due to our
disposition of appellant’s second issue, we do not address whether appellant
preserved for our review his complaint about State’s Exhibits 1A and 1B. See TEX.
R. APP. P. 47.1; Cruz-Escalante v. State, 491 S.W.3d 857, 860 n.3 (Tex. App—
Houston [1st Dist.] 2016, no pet.) (declining to address whether defendant preserved
complaint).
12
v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). A
trial court abuses its discretion if it acts arbitrarily, unreasonably, or without
reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372,
380 (Tex. Crim. App. 1990). When considering a trial court’s decision to admit
evidence, we will not reverse the trial court’s ruling unless it falls outside the “zone
of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App.
1996) (internal quotations omitted). We will uphold a trial court’s evidentiary ruling
if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009).
Appellant argues that the affidavit attached to State’s Exhibits 1A and 1B and
signed by Rhitejak Nikhil Ingreji, the custodian of records for the Economy Lodge
hotel, is inadequate because it fails to state that Ingreji was “familiar with the manner
in which [the Economy Lodge hotel’s] records are created and maintained by virtue
of [his] duties and responsibilities” and no other language in the affidavit expresses
that Ingreji was “aware of how records [were] kept because of his responsibilities at
the Economy Lodge [hotel].” See TEX. R. EVID. 902(10)(B) (affidavit sufficient if
it includes language affiant “familiar with the manner in which its records are created
and maintained by virtue of [his] duties and responsibilities,” but noting such
language not specifically required).
13
The Texas Rules of Evidence allow the admission of records kept in the course
of regularly conducted activities. TEX. R. EVID. 803(6). To be properly admitted
under rule 803(6), the proponent must prove that the record was made at or near the
time of the events recorded, from information transmitted by a person with
knowledge of the events, and made or kept in the course of a regularly conducted
business activity. Id.; see also Haq v. State, 445 S.W.3d 330, 334 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d); Reyes v. State, 48 S.W.3d 917, 921 (Tex.
App.—Fort Worth 2001, no pet.). The predicate for admission of a business record
may be established by an affidavit that complies with Texas Rule of Evidence
902(10). TEX. R. EVID. 803(6), 902(10); see also Dominguez v. State, 441 S.W.3d
652, 657 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“Rule
902(10) . . . provides a cost-effective method of authenticating business records; it
allows business records to be authenticated by an affidavit that substantially
conforms to the model affidavit provided in the rule, rather than by live testimony.”);
Reyes, 48 S.W.3d at 921. The predicate witness does not have to be the record’s
creator or have personal knowledge of the contents of the record. Canseco v. State,
199 S.W.3d 437, 440 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Reyes, 48
S.W.3d at 921; Brooks v. State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995,
pet. ref’d). The witness need only have personal knowledge of the manner in which
14
the records were prepared. Canseco, 199 S.W.3d at 440; Reyes, 48 S.W.3d at 921;
Brooks, 901 S.W.2d at 746.
Rule 902(10)(B) provides a sample form of an affidavit, which complies with
the rule, but it also states that an affidavit which substantially complies with the
provisions of the rule shall suffice. See TEX. R. EVID. 902(10)(B) (noting form
provided “not exclusive”); see also Dominguez, 441 S.W.3d at 657; Reyes, 48
S.W.3d at 921; Fullick v. City of Baytown, 820 S.W.2d 943, 944 (Tex. App.—
Houston [1st Dist.] 1991, no writ) (“Rule 902(10) provides that the form set out in
the rule is not exclusive, and that an affidavit which substantially complies with the
affidavit set out in the rule will suffice.”).
Ingreji testified in his affidavit, attached to State’s Exhibits 1A and 1B, as
follows:
My name is Rhitejak Nikhil Ingreji, I am of sound mind, capable
of making this affidavit, and personally acquainted with the facts herein
stated:
I am the custodian of records of the Economy Lodge. Attached
hereto are Two (2) . . . disk(s) of records from the Economy Lodge.
These said Two (2) . . . disk(s) of records are kept by the Economy
Lodge in the regular course of business, and it was the regular course
of business of for an employee or representative of the Economy Lodge,
with knowledge of the act, event, condition, opinion, or diagnosis,
recorded to make the record or to transmit information thereof to be
included in such record; and the record was made at or near the time or
reasonably soon thereafter. The records attached hereto are the original
or exact duplicates of the original.
15
Ingreji averred that he is the custodian of records for the Economy Lodge
hotel; State’s Exhibits 1A and 1B, which were attached to his affidavit, were kept in
the regular course of business; State’s Exhibits 1A and 1B were made by an
employee or representative of the Economy Lodge hotel with knowledge of the
events; and the employee or representative made the records at or near the time of
the event. Thus, Ingreji’s affidavit substantially complies with Texas Rule of
Evidence 902(10). See TEX. R. EVID. 902(10)(B); Reyes, 48 S.W.3d at 921–22; see
also Dominguez, 441 S.W.3d at 657; Fullick, 820 S.W.2d at 944.
Accordingly, we hold that the trial court did not err in admitting into evidence
State’s Exhibits 1A and 1B, the surveillance videotape recording from the Economy
Lodge hotel.
We overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Keyes, and Higley.
Do not publish. TEX. R. APP. P. 47.2(b).
16