James Verdine v. State ( 2020 )

Opinion issued April 2, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00884-CR
———————————
JAMES VERDINE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Case No. 1605457
MEMORANDUM OPINION
James Verdine was convicted of aggravated robbery with a deadly weapon
by a Harris County jury and sentenced to sixty years’ confinement. In five issues,
Verdine challenges the trial court’s rulings to (1) deny his motion for directed
verdict, (2) deny his motion for mistrial based on objectionable witness testimony,
(3) deny his motion for mistrial based on objectionable jury argument, (4) deny his
objection to surveillance video evidence for lack of authentication, and (5) deny his
objection to a 9-1-1 recording on the basis that the admission of evidence violated
his Sixth Amendment right to confront his accuser.
We affirm.
Background
Zone D’Erotica was staffed by only one employee one February evening,
when a man with a gun met the sole employee near the entrance, pointed a gun at
her and led her to the cash register. The robber stole money from the cash register
and fled on foot. The business’s surveillance camera captured a few seconds of the
events, as the two moved from the store entrance deeper into the building. The
store employee called 9-1-1 after the robbery. She stated that the business had been
robbed about five minutes earlier, she was the only employee there at the time, and
the robber fled on foot toward an apartment complex nearby. She described the
robber’s general appearance to the operator.
Officer S. Fernandez was patrolling the area. Within minutes, he saw James
Verdine on foot 150 feet from Zone D’Erotica. Verdine was sweaty, which
indicated to Fernandez that he had been running. Fernandez brought Verdine back
to the store for the employee to identify; the employee could not identify him.
2
Sergeant C. Malveaux investigated the robbery. He interviewed the store
employee, watched the surveillance video he had asked the store manager to
download, and interviewed Verdine, who remained a suspect. According to
Malveaux, Verdine’s physical appearance during the interview was very similar to
the physical appearance of the man in the surveillance video. Malveaux noted that
both wore the same shoes.
The store employee did not appear at trial to testify. Her 9-1-1 call was
played for the jury over Verdine’s objection that admitting the evidence violated
his constitutional right to confront his accuser. The surveillance video recording
was also played over Verdine’s objection that it had not been adequately
authenticated.
The jury convicted Verdine of aggravated robbery. After receiving
enhancement evidence of earlier convictions, the jury selected a punishment of 60
years’ confinement. The trial court entered a judgment of guilty and sentenced
Verdine to 60 years’ confinement.
Verdine appeals.
Denial of Directed Verdict
When an appellant in a criminal case raises an issue that, if successful,
would result in a remand for a new trial and another issue that, if successful, would
result in an acquittal, we will consider first the issue that could lead to an acquittal.
3
See Lucas v. State, 245 S.W.3d 611, 612 (Tex. App.—Houston [14th Dist.] 2007,
pet. ref’d). Accordingly, we review, first, Verdine’s issue challenging the denial of
his motion for directed verdict.
A. Standard of review and applicable law
A challenge to a trial court’s denial of a motion for directed verdict is
reviewed under the same standard used to review legal sufficiency. Hines v. State,
383 S.W.3d 615, 623 (Tex. App.—San Antonio 2012, pet. ref’d). Legal sufficiency
of the evidence is reviewed under the standard enunciated in Jackson v. Virginia,
443 U.S. 307, 318–20 (1979). See Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.
Crim. App. 2010). Under the Jackson standard, evidence is insufficient when,
considered in the light most favorable to the verdict, no rational factfinder could
have found that each essential element of the charged offense was proven beyond a
reasonable doubt. See Jackson, 443 U.S. at 317–19; Laster v. State, 275 S.W.3d
512, 517 (Tex. Crim. App. 2009). We consider both direct and circumstantial
evidence as well as all reasonable inferences that may be drawn from that
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Jurors are the exclusive judges of the facts, the credibility of the witnesses,
and the weight to be given to witness testimony. Bartlett v. State, 270 S.W.3d 147,
150 (Tex. Crim. App. 2008). The jury may choose to believe or disbelieve any part
of a witness’s testimony. See Davis v. State, 177 S.W.3d 355, 358 (Tex. App.—
4
Houston [1st Dist.] 2005, no pet.). Inconsistencies or contradictions in a witness’s
testimony do not destroy that testimony as a matter of law. McDonald v. State, 462
S.W.2d 40, 41 (Tex. Crim. App. 1970).
We afford almost complete deference to the jury’s credibility
determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
We may not re-evaluate the weight and credibility of the evidence or substitute our
judgment for that of the jurors. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007).
We resolve any inconsistencies in the evidence in favor of the verdict. Curry
v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see Clayton, 235 S.W.3d at
778 (“When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the prosecution and therefore defer to
that determination.”).
A person commits the offense of robbery if, in the course of committing
theft, and with the intent to obtain or maintain control of the property, he either
(1) intentionally, knowingly, or recklessly causes bodily injury to another or
(2) intentionally or knowingly threatens or places another in fear of imminent
bodily injury or death. TEX. PENAL CODE § 29.02(a). The offense is a second-
degree felony. Id. § 29.02(b). There are several aggravating factors that can elevate
5
the offense to first-degree aggravated robbery, including if the person commits the
offense of robbery while using or exhibiting a deadly weapon. Id. § 29.03(a)(2).
B. The trial court did not err in denying Verdine’s motion for directed
verdict
Verdine argues the State failed to present even a scintilla of evidence that the
store employee “exhibited any sign of fear.” First, the employee did not testify at
trial to provide evidence of fear. Second, the audiotape of the employee’s 9-1-1
call, which was played for the jury,1 that provided no evidence of fear in that the
call was made after the robber had left, the employee’s voice was steady and calm,
and the employee said nothing about being injured or fearful.
The element for which Verdine argues there is legally insufficient evidence
can be met in one of two way: with evidence the robber, with the appropriate mens
rea, either (1) caused bodily injury or (2) threatened or placed another in fear of
imminent bodily injury or death. Id. § 29.02(a). The State attempted to meet this
element with evidence fitting within the second category of “threatened or placed
another in fear.” Verdine argues there is no evidence of fear, but he fails to account
for evidence suggesting he threatened the store employee with a firearm. See
Olivas v. State, 203 S.W.3d 341, 346 (Tex. Crim. App. 2006) (“By defining
robbery to be theft plus either threatening or placing another in fear, [the robbery]
1
Verdine objected to the 9-1-1 audiotape’s admission, arguing that it violated his
rights under the Confrontation Clause of the Sixth Amendment. We overrule this
challenge later in the opinion.
6
statute demonstrates that the term ‘threaten’ means something other than placing a
person ‘in fear of imminent bodily injury or death.’”); Vaughn v. State, 634 S.W.2d
310, 312 (Tex. Crim. App. 1982).
The term “threaten” has been interpreted by the Texas Court of Criminal
Appeals to include, among other things, (1) declaring an intention to hurt or punish
someone, (2) making a menacing indication of something dangerous or evil,
(3) expressing intent to inflict injury or retaliation, and (4) being a source of danger
or harm. Olivas, 203 S.W.3d at 345. A threat does not have to be voiced; it can be
communicated by the robber’s actions or conduct. McGowan v. State, 664 S.W.2d
355, 357 (Tex. Crim. App. 1984). “So long as the defendant’s actions are of such
nature as in reason and common experience is likely to induce a person to part with
his property against his will, any actual or perceived threat of imminent bodily
injury will satisfy this element of the offense.” Howard v. State, 333 S.W.3d 137,
138 (Tex. Crim. App. 2011) (internal quotation marks omitted).
The act of reaching over a counter and taking money from a cash register
has been held to qualify as a threat to satisfy this element of the aggravated robbery
statute. Boston v. State, 410 S.W.3d 321, 327 (Tex. Crim. App. 2013). Relevant
here, so is the act of pointing a gun at an individual during a theft. See Boston v.
State, 373 S.W.3d 832, 840 (Tex. App.—Austin 2012) (“We conclude that the act
of brandishing a gun, when done during the course of committing theft, supports a
7
conviction for aggravated robbery by threat, even when the victim is not aware of
the gun”), aff’d, 410 S.W.3d 321 (Tex. Crim. App. 2013); cf. Fagan v. State, 362
S.W.3d 796, 799 (Tex. App.—Texarkana 2012, pet. denied) (pointing loaded gun
at individual is threatening conduct to support conviction for aggravated assault).
The store surveillance video was admitted into evidence and played for the
jury.2 The recording is only a few seconds long. It shows a woman at the entrance
of the store followed closely by a man holding a gun to the woman’s back. After a
couple steps, the man nudges the woman, and she begins to walk with more
urgency. The two leave the screen quickly. The recording does not show anyone
taking money or property. The recording shows only the entry into the store, the
pointing of a gun, and the nudge and faster movement in response.
Sergeant Malveaux testified about the recording. He stated that the woman
in the video is the store employee, who he recognized from having interviewed her
post-robbery. Malveaux testified that the man in the video is Verdine, who he
recognized from his police-investigation interview. According to Malveaux,
Verdine looked the same in the video as he did in the interview. Malveaux
specifically noted that the man in the video was wearing “the same boots” that
Verdine wore when Malveaux interviewed him.
2
Verdine objected to the recording’s admission, arguing that it had not been
properly authenticated. We overrule this challenge later in the opinion.
8
Officer Fernandez and Sergeant Malveaux both testified the store was
robbed on February 16, 2017. That date matches the date displayed on the bottom
portion of the recording, as played for the jury.
Thus, the jury received video and testimonial evidence that Verdine robbed
the store on February 16 and that he pointed a gun at the store employee while
doing so. We conclude there was legally sufficient evidence Verdine threatened the
store employee by pointing a gun at her while committing theft. See Boston, 373
S.W.3d at 840.
We overrule Verdine’s second issue.
Confrontation Clause
In Verdine’s first issue, he argues his Sixth Amendment right to confront his
accuser was violated when the trial court admitted a recording of the store
employee’s 9-1-1 call without the store employee present at trial to testify as a
witness.
A. Standard of review and applicable law
A trial court’s ruling to exclude or admit evidence generally is reviewed for
an abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.
2009); Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We
defer to a trial court’s determination of historical facts and credibility, but we
review de novo a ruling on the admissibility of evidence over a Confrontation
9
Clause objection. Wall v. State, 184 S.W.3d 730, 742, 743 n.48 (Tex. Crim. App.
2006) (noting that appellate courts review trial court rulings on admissibility of
hearsay evidence under abuse-of-discretion standard but review Confrontation
Clause objections to admission of evidence under de novo standard).
The Confrontation Clause bars admission of a witness’s testimonial
statements when the witness does not appear at trial unless the witness is
unavailable to testify and the defendant has had a prior opportunity for cross-
examination. See Davis v. Washington, 547 U.S. 813, 821 (2006) (citing Crawford
v. Washington, 541 U.S. 36, 53–54 (2004)); see U.S. CONST. amend. VI. The
purpose is to afford the defendant “the opportunity of cross-examination because
that is the principal means by which the believability of a witness and the truth of
his testimony are tested.” Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App.
2016) (internal quotation marks omitted).
When a defendant raises a Confrontation Clause objection, the burden is on
the State to establish that the evidence does not contain testimonial hearsay
statements or that it does but such statements are nevertheless admissible. De La
Paz v. State, 273 S.W.3d 671, 681 (Tex. Crim. App. 2008). The State argued and
the trial court found that the store employee’s statements on the 9-1-1 recording
were nontestimonial. Whether they were is a question of law we review de novo.
Wall, 184 S.W.3d at 742.
10
Our review focuses on the primary basis for the statement. Davis, 547 U.S.
at 822. Statements are nontestimonial when made “under circumstances
objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency.” Id. They are testimonial when
“the circumstances objectively indicate that there is no such ongoing emergency,
and that the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.” Id. Further, it is “the
declarant’s statements, not the interrogator’s questions, that the Confrontation
Clause requires us to evaluate.” Id. at 822 n.1.
The Davis Court analyzed whether admission of a 9-1-1 recording violated
the accused’s Sixth Amendment rights. 547 U.S. at 817. In that case, a woman,
McCottry, called 9-1-1 and was disconnected. The operator called her back. Id.
McCottry told the operator, “He’s here jumpin’ on me again.” Id. She was
referring to her former boyfriend, against whom she had a restraining order, who
was at her home assaulting her. Id. The operator asked if he had any weapons, and
McCottry said no. Id. McCottry told the operator he was hitting her with his fists.
Id. The operator asked her to identify the man, and McCottry said his name aloud:
Adrian Davis. Id. 818. McCottry then told the operator, “He’s runnin’ now.” Id.
Having been identified to the 9-1-1 operator, and by extension the police, by name,
11
Davis fled. McCottry’s tone during the 9-1-1 call is described in the Supreme
Court’s opinion as “frantic.” Id. at 827.
The conversation with the 9-1-1 operator continued after Davis fled. The
operator asked McCottry some identification-based questions, including Davis’s
birthday. Id. at 818. The operator asked what Davis had said was the reason he
came to McCottry’s house. Id. After these questions, the operator told McCottry
the police were going to “check the area for him first” but then would “come talk
to” her. Id. The police arrived four minutes later and found McCottry in a “shaken
state” with “fresh injuries.” Id. She was making “frantic efforts” to gather her
belongings so that she and her children “could leave the residence.” Id.
The Davis Court held that McCottry’s statements made in the 9-1-1 call
were nontestimonial because she was speaking about events “as they were actually
happening, rather than describing past events.” Id. at 827 (internal quotation marks
and brackets omitted). She was “facing an ongoing emergency” during the call,
which was “plainly a call for help against bona fide physical threat.” Id.
Objectively, the nature of what was asked and answered was “to be able to resolve
the present emergency rather than simply to learn . . . what had happened in the
past,” even to the extent the operator sought “to establish the identity of the
assailant, so that the dispatched officers might know whether they would be
encountering a violent felon.” Id. Lastly, the Court noted, McCottry was “frantic”
12
in answering the operator’s questions in an environment “that was not tranquil, or
even (as far as any reasonable 911 operator could make out) safe.” Id.
The Texas Court of Criminal Appeals, relying on Davis, has employed a
five-factor test to determine whether statements are considered made during an
ongoing emergency and, thus, nontestimonial. Vinson v. State, 252 S.W.3d 336,
339 (Tex. Crim. App. 2008); see Gutierrez v. State, 516 S.W.3d 593, 597 (Tex.
App.—Houston [1st Dist.] 2017, pet. ref’d). The factors include: (1) whether the
situation was still in progress, (2) whether the questions sought to determine what
was presently happening as opposed to what has happened in the past, (3) whether
the primary purpose of the interrogation was to render aid rather than to
memorialize a possible crime, (4) whether the questioning was conducted in a
separate room, away from the alleged attacker, and (5) whether the events were
deliberately recounted in a step-by-step fashion. Vinson, 252 S.W.3d at 339;
Gutierrez, 516 S.W.3d at 597.
B. The challenged statements in the 9-1-1 recording
The jury received evidence that the 9-1-1 call was made by the store
employee a few minutes after the robbery. In the recording of the call, the store
employee describes key aspects of the robbery that had just occurred. Her voice
remains stable and soft throughout the call. The entirety of the conversation, except
for the inaudible portions, as noted, is transcribed below:
13
Operator: Houston 9-1-1. Do you need medical, police, or fire?
Caller: Police
Operator: What is the address?
Caller: Ah. Hold on [inaudible] Ah. 13137 Willow Chase Dr.
Operator: Is this a house, apartment, or business?
Caller: Business
Operator: What is the name of the business?
Caller: Zone D’Erotica
Operator: What is your telephone number?
Caller: Ah [inaudible] I don’t know the number here.
Operator: OK. What is your name?
Caller: Tiffany
Operator: What are you reporting?
Caller: A robbery
Operator: Like, what happened?
Caller: Like, a guy came in with a gun and took all the money
out of the drawer and left.
Operator: How long ago did this happen?
Caller: Ah. Five minutes
Operator: Handgun or a rifle?
Caller: Handgun
Operator: And it was just one person?
Caller: Yes
Operator: How many victims were there?
Caller: I was the only person here.
Operator: Was he white, black, Hispanic, or Asian?
Caller: Black
14
Operator: How old did he appear to be?
Caller: Probably later 30s or early 40s. He was bald.
Operator: What color shirt was he wearing?
Caller: [inaudible] Black
Operator: And what color bottoms?
Caller: I don’t remember [inaudible] so I’m not sure
Operator: Was he on foot?
Caller: Yep. And when he left, he ran toward the apartments
back behind here.
Operator: Hold on. OK. Police should be dispatched to 13137
Willow Chase Dr. Is that correct?
Caller: Yes ma’am.
Operator: Thank you.
Caller: Thank you.
Operator: Bye-bye.
C. Statements were testimonial
Statements are testimonial and implicate the Confrontation Clause when the
circumstances objectively indicate no ongoing emergency and the primary purpose
of the interrogation is to establish or prove past events that are potentially relevant
to later criminal prosecution. Davis, 547 U.S. at 822.
In the store employee’s 9-1-1 call, the entire exchange dealt with past
events. The caller told the operator the store had been robbed minutes earlier and
the robber was gone. There is no indication of ongoing criminal activity or fear that
15
additional criminal activity might occur; the caller confirmed the robber fled
minutes earlier. Cf. Dixon v. State, 244 S.W.3d 472, 484–85 (Tex. App.—Houston
[14th Dist.] 2007, pet. ref’d) (in determining that 9-1-1 call amounted to
nontestimonial “cry for help,” noting that “highly distraught” caller stated her
boyfriend had recently assaulted her in the car, she was in her home, he was not
there, but her front door “doesn’t lock very good,” which presented danger if he
were to return).
Nothing was mentioned by the caller or to the caller about an ongoing
emergency or the need for aid to meet an ongoing emergency. Cf. id. (in
determining that 9-1-1 call amounted to nontestimonial “cry for help,” noting that
“hysterical” caller initially stated she did not need medical attention but later added
that her finger might be broken). Instead, the focus of the call was the store
employee providing descriptive information about the robber for the police’s use.
In sum, all statements made by the store employee to the 9-1-1 operator
related to establishing past events and describing the person whom the police
would be looking for near the apartments. Moreover, the caller recited the
requested identifying information in an orderly progression without varying topics,
making frantic outbursts, or expressing emotion, alarm, or concern. Cf. id.
The information conveyed to the 9-1-1 operator would potentially be
relevant to the criminal investigation and the later criminal prosecution; the
16
statements were not focused on obtaining assistance for an ongoing emergency.
See Gutierrez, 516 S.W.3d at 598 (concluding 9-1-1 call was testimonial after
noting call was “focused on what had occurred in the past without any expressed
concern or discussion of an ongoing emergency,” the caller did not indicate any
concern that the person who had assaulted her would return, and the caller
“declined medical attention” both on the call and when police arrived).
Applying a de novo review, we conclude the store employee’s statements on
the 9-1-1 recording were testimonial in nature. Although the prosecutor had
anticipated the store employee would appear at trial to testify about the robbery,
she did not. Thus, the admission of the store employee’s testimonial statements
without affording Verdine the ability to cross-examine her violated Verdine’s
rights under the Confrontation Clause.
D. Harm analysis
1. Standard of review
We review constitutional error in the admission of testimonial statements in
violation of the Confrontation Clause under the standard specified in Rule 44.2(a)
of the Texas Rules of Appellate Procedure. Clay v. State, 240 S.W.3d 895, 904
(Tex. Crim. App. 2007); see TEX. R. APP. P. 44.2(a). Constitutional error requires
reversal of the judgment “unless the court determines beyond a reasonable doubt
17
that the error did not contribute to the conviction or punishment.” TEX. R. APP. P.
44.2(a).
The following factors are relevant to our analysis: 1) how important was the
out-of-court statement to the State’s case; 2) whether the out-of-court statement
was cumulative of other evidence; 3) the presence or absence of evidence
corroborating or contradicting the out-of-court statement on material points; and
4) the overall strength of the State’s case. Scott v. State, 227 S.W.3d 670, 690 (Tex.
Crim. App. 2007).
The emphasis of the harm analysis under Rule 44.2(a) is not on the propriety
of the outcome of the trial. Id. In other words, the question is not whether the jury’s
verdict was supported by evidence. Id. Instead, the question is the likelihood that
the constitutional error was actually a contributing factor in the jury’s deliberations
in arriving at its verdict. That is, whether the error adversely affected the integrity
of the process that led to the conviction. Id.
In analyzing harm, we may consider, in addition to the factors listed above,
and without limitation, the source and nature of the error, the extent, if any, the
error was emphasized by the State, and how weighty the jury may have found the
erroneously admitted evidence to be compared to the balance of evidence with
respect to an element or defensive issue to which the evidence is relevant. Id.
18
We must ask whether there is a reasonable possibility that the error moved
the jury from a state of non-persuasion to one of persuasion on a particular issue.
Id. Ultimately, we must be satisfied, to a level of confidence beyond a reasonable
doubt, that the error did not contribute to the conviction to conclude that the error
was harmless and affirm. Id.
2. Error was harmless
Verdine argues the error in admitting the 9-1-1 recording was harmful
because the store employee was not at trial to testify about the robbery or to
identify Verdine as the person who robbed the store. Although he characterizes the
9-1-1 recording as “not cumulative of other evidence” in his brief, Verdine
acknowledges the statements in the recording corroborated other incriminating
evidence. In our view, the corroborative nature of the statements made it
cumulative.
Officer Fernandez testified he received a dispatch call and, within minutes,
encountered Verdine, on foot, only 150 feet from the store. Verdine was sweaty on
a February evening, which suggested to Fernandez that Verdine had been running.
He found money wadded up in Verdine’s pants pocket, though he did not testify
how much money was recovered.
Another investigating officer, Sergeant Malveaux, testified he investigated
the store robbery. He watched the store’s surveillance video. He also interviewed
19
Verdine, who was a suspect. According to Malveaux, the man in the store’s
surveillance video seen pointing a gun at a woman as he enters the store matched
Verdine’s appearance during the police interview. Malveaux testified the two had
matching physical characteristics, including matching shoes.
The store employee’s testimony on the 9-1-1 recording described the
robbery and the robber. It was cumulative of the testimony from the two officers
and the video evidence. On the 9-1-1 recording, the store employee states the store
was robbed, which Sergeant Malveaux testified to. She stated the robber was a
black, bald man wearing a black shirt, which is seen on the surveillance video and
consistent with Fernandez’s testimony about Verdine’s appearance when he
stopped Verdine shortly after the robbery. Finally, the caller stated the robber fled
on foot. Fernandez testified he found Verdine 150 feet from the store in a sweaty
state.
Because of its cumulative character, we conclude there is not a reasonable
possibility the trial court’s admission of the 9-1-1 recording moved the jury from a
state of non-persuasion to one of persuasion on the issue of Verdine’s guilt or
punishment. See Kou v. State, 536 S.W.3d 535, 545–49 (Tex. App.—San Antonio
2017, pet. ref’d) (in child-sexual-abuse case, concluding that erroneous admission
of lab results showing child had herpes infection was harmless given that jury also
20
received testimony from nurse examiner about her observation of lesions on child
that looked like herpes infection); see also TEX. R. APP. P. 44.2(a).
Moreover, this is not the type of 9-1-1 call that raises concern over the
possibility emotional, perhaps distraught, pleas for help will inflame the jury and
lead it to reach a verdict detached from the evidence. See Sierra v. State, 157
S.W.3d 52, 63 (Tex. App.—Fort Worth 2004) (concluding that, while voices on
9-1-1 recording were “excited and distraught,” they “did not display such emotion
as to inflame the jurors to act on emotion rather than on the evidence”), aff’d, 218
S.W.3d 85 (Tex. Crim. App. 2007). The store employee maintained a steady voice
throughout the call. There was no indication of fear or distress. All her statements
were factual responses to specific questions about what had occurred, where, and
by whom. The character of the call presents no concern that the error in admitting
the call moved the jury from a position of non-persuasion to one of persuasion on
the issue of Verdine’s guilt or punishment. See TEX. R. APP. P. 44.2(a).
Finally, we reject Verdine’s argument that the weakness of the State’s case
requires a holding of harmful error. Verdine objected to the 9-1-1 recording and
the surveillance video recording. He argues on appeal the trial court erred in
admitting both. His harm analysis in analyzing the admission of the 9-1-1
recording hinges on the surveillance video recording being held inadmissible too.
But we have already concluded the surveillance video recording was properly
21
admitted. Viewing the 9-1-1 call in light of surveillance video recording, we
cannot agree with Verdine that the call affected the jury’s determination of guilt or
punishment.
Because we have determined beyond a reasonable doubt the trial court’s
error in admitting the 9-1-1 recording did not contributed to Verdine’s conviction
or punishment, we conclude the error in admitting the recording was harmless
beyond a reasonable doubt.
We overrule Verdine’s first issue.
Surveillance Video Evidence
In his third issue, Verdine argues the trial court abused its discretion in
admitting the surveillance video recording discussed above because it was
inadequately authenticated by the State’s witnesses.
A. Standard of review and applicable law
The standard for reviewing a trial court’s evidentiary rulings is abuse of
discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The
deferential standard requires that we uphold a trial court’s admissibility decision
when that decision is within the zone of reasonable disagreement. Fowler v. State,
544 S.W.3d 844, 848 (Tex. Crim. App. 2018). A trial court judge is given
considerable latitude on evidentiary rulings. Id. That different trial judges might
reach different conclusions on similar facts does not equate to an abuse of
22
discretion. Id. So long as the trial court’s ruling that a jury could reasonably find
proffered evidence authentic is at least within the zone of reasonable
disagreement,” we do not interfere. Id.
Rule of Evidence 901 provides that, 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).
The proponent of surveillance video is not limited to proving the video
recording’s authenticity through testimony of someone who witnessed what the
recording depicts or someone familiar with the functioning of the recording device.
Fowler, 544 S.W.3d at 848. Surveillance video evidence can be authenticated with
evidence of distinctive characteristics, including the “appearance, contents,
substance, internal patterns, or other distinctive characteristics, taken together with
all the circumstances.” TEX. R. EVID. 901(b)(4); see Fowler, 544 S.W.3d at 848.
Authenticity is not required to be established conclusively. Fowler, 544 S.W.3d at
848. Instead, “Rule 901 merely requires some evidence sufficient to support a
finding that evidence in question is what the proponent claims.” Id. at 849 (internal
quotation marks omitted).
23
Video recordings without audio are treated as photographs and are
authenticated by establishing that the images accurately represent the scene in
question and are relevant to a disputed issue. Id.
B. The trial court did not err in admitting the surveillance video recording
In arguing the video was not adequately authenticated, Verdine attempts to
distinguish the facts surrounding the Zone D’Erotica’s surveillance video from the
video at issue in Fowler. 544 S.W.3d at 848. In Fowler, the surveillance video was
authenticated by an investigating officer without any testimony from the person
who downloaded the images or the person who was responsible for maintaining the
surveillance equipment. 544 S.W.3d at 848. In holding the video had been
adequately authenticated, the Court of Criminal Appeals acknowledged the
prosecutor could have produced more evidence in support of authentication with
testimony from the person who downloaded the images or the person who was
responsible for maintaining the surveillance equipment. Id. at 850. But that
testimony was not mandatory because the State was not required to conclusively
prove that the video was what it purported to be; instead, Rule 901 “merely
requires some evidence sufficient to support a finding that evidence in question is
what the proponent claims.” Id. at 848 (quoting Reed v. State, 811 S.W.2d 582, 587
(Tex. Crim. App. 1991). The investigating officer’s testimony sufficed. Id. at 848.
24
The Fowler Court concluded the following circumstantial evidence supplied
sufficient facts to support the trial court’s ruling that a reasonable jury could have
found the evidence authentic:
• the officer made an in-person request of the store manager to pull the
surveillance video on a certain date at a certain time;
• the videotape displayed a date and time stamp;
• the date and time matched the relevant time of the offense; and
• the videotape contained an image of the defendant at the time and date
specified.
Id. at 849–50.
Here, Sergeant Malveaux testified he investigated the robbery that occurred
on February 16, 2017. That same day, he requested the store’s surveillance video.
Malveaux watched the manager download the video onto a flash drive. Malveaux
testified that, during his investigation, he met the store employee who was working
at the time of the robbery. He also met Verdine. He testified he has watched the
surveillance video recording and, in his view, both Verdine and the store employee
are shown in the video, along with the date of the robbery. We conclude the trial
court’s determination that Sergeant Malveaux supplied facts sufficient to support a
reasonable jury determination that the videotape was authentic was a decision
within the zone of reasonable disagreement. Id.
25
Verdine argues for the first time on appeal that there is another layer of
authentication error with regard to the surveillance video: that it appears to be a
video taken of a television or computer screen playing the surveillance video. In
other words, the trial exhibit is a video of the challenged video. First, videos
without sound are analyzed as photographs, and the rules of evidence permit
duplicate impressions to be admitted the same as the original unless admission of
the duplicate would be unfair or there is an issue of authenticity as to the original.
See Fowler, 544 S.W.3d at 849; see also TEX. R. EVID. 1001(c) (“photograph”
means “photographic image or its equivalent stored in any form”), (d) (“original”
photograph includes “the negative or a print from it”); 1003 (providing that a
“duplicate is admissible to the same extent as the original unless a question is
raised about the original’s authenticity or the circumstances make it unfair to admit
the duplicate”). Second, we have already concluded the original video recording
obtained by Sergeant Malveaux from the store manager did not raise authenticity
concerns beyond the zone of reasonable disagreement. Third, Verdine does not
argue any basis from which to conclude the creation of a copy video raised an issue
of alteration or taint of the original video, only that it appears to be such a copy.
Concluding the trial court’s ruling to admit the surveillance video recording
was within the zone of reasonable disagreement and not an abuse of discretion, we
hold the trial court did not err in admitting the videotape.
26
We overrule Verdine’s third issue.
Denial of Motion for Mistrial
In his fourth and fifth issues, Verdine argues the trial court abused its
discretion in denying his two motions for mistrial.
A. Standard of review and applicable law
A mistrial is an appropriate remedy in “extreme circumstances” for a narrow
class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880,
884 (Tex. Crim. App. 2009). We review the denial of a mistrial for an abuse of
discretion. Id. We must uphold the ruling if it was within the zone of reasonable
disagreement. Id. In determining whether a trial court abused its discretion by
denying a mistrial, we balance three factors: (1) the severity of the misconduct
(including its prejudicial effect); (2) the effectiveness of the curative measures
taken; and (3) the certainty of the conviction or punishment assessed absent the
misconduct. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Mosley
v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
B. First motion for mistrial
The events surrounding the first denied motion for mistrial occurred in the
following order. The surveillance video recording was admitted into evidence. The
recording was played while J. Gonzalez, a District Attorney’s Office Investigator,
testified. When the video finished, the prosecutor asked Gonzalez who he saw in
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the video. Gonzalez answered with the name of the store employee, who he had
previously met and interviewed. Next, the prosecutor asked Gonzalez to “describe
for the jury how she appears” in the recording. He answered, “Rather scared.”
Verdine objected that the question called for speculation. The objection was
sustained. Verdine requested an instruction to the jury to disregard the statement.
The trial court instructed the jury to disregard it. Verdine moved for a mistrial. The
trial court denied his motion.
“Ordinarily, a prompt instruction to disregard will cure error associated with
an improper question and answer . . . .” Ovalle v. State, 13 S.W.3d 774, 783 (Tex.
Crim. App. 2000). Prejudice is incurable only when the objectionable material is
clearly calculated to inflame the jury or is of such a damaging character as to
suggest it would be impossible to remove the harmful impression from the jurors’
minds. See Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009).
We conclude the objectionable question and answer were not so prejudicial
as to be incurable with an instruction to disregard or to overcome the presumption
the jury followed the trial court’s instruction to disregard. The question was a small
part of the evidence. And, while Verdine’s earlier issue challenging the denied
directed verdict focused on whether the store employee was fearful, as we have
noted, her “fear” was not a necessary element to convict on the offense of robbery:
a “threat” was a permissible alternative. Thus, the jury’s verdict did not turn on
28
being adequately persuaded the store employee looked scared. Finally, the video
recording was in evidence, and the jurors were free to evaluate it to form their own
impression regarding how the store employee “appeared,” independent of the
investigator’s interpretation. See Maryland Cas. Co. v. Hearks, 190 S.W.2d 62, 64
(Tex. 1945) (jurors make their own determination of evidence).
We conclude Investigator Gonzalez’s statement was not so prejudicial that it
suggests the jury could not withdraw the impression produced by the remark or
would not adhere to the trial court’s instruction to disregard it. Accordingly, we
hold the trial court did not abuse its discretion in denying appellant’s first motion
for mistrial.
C. Second motion for mistrial
Verdine moved again for a mistrial after the State began its closing
arguments. The prosecutor’s closing began as follows:
There is no evidence of fear in this case? Did we not see State’s
Exhibit No. 6 [the surveillance video]? Do we not see the video of this
defendant pointing a gun at [the store employee]? You can tell from
the video that she was outside smoking a cigarette and she’s ushered
back in with a shotgun[3] to her back. Do we not have any evidence of
fear when [the employee] walks into this courtroom, sees this
defendant, and walks right back out because she’s too afraid to tell
you—
3
The gun in the video is a handgun, as Investigator Gonzalez stated in his
testimony. Verdine does not argue error or harm in the misstatement of the type of
weapon seen in the video.
29
At that point, Verdine interrupted to lodge an objection that the argument went
outside the record. The trial court sustained the objection. Verdine requested the
jury be instructed to disregard the statement. The trial court instructed the jury to
do so. Verdine moved for a mistrial. The trial court denied the motion.
Immediately after, the prosecutor continued by stating the following:
Officer Gonzalez told you that [the store employee] appeared in court
and she walked out. And you and I can infer as to why that could be.
We know for a fact that Officer Fernandez came here and he testified
that he brought the defendant back. He brought the defendant back to
the scene and he had [the employee] look at him. The defendant is
staring right at her. He is in the back of his patrol car. The robbery had
just occurred and she’s too afraid to pick him out. There is your fear,
ladies and gentlemen. I told you in voir dire that beyond a reasonable
doubt is your gut feeling. It is a common-sense standard. And the
Judge said it and I’m going to say it again: You do not leave your
common sense at the door. Common sense tells you that when a
person has a gun pointed at them, when they are demanded all the
cash in the safe, in the cash register—and all that is present on that
9-1-1 call—fear is present.
Verdine did not object to the second statement, which was a restatement of
the first objected-to statement. Failure to object to jury argument at trial forfeits the
right to raise the issue on appeal. Ethington v. State, 819 S.W.2d 854, 858 (Tex.
Crim. App. 1991); TEX. R. APP. P. 33.1(a). If impermissible argument is pursued
after an initial objection, counsel must lodge a new objection “each and every time
the objectionable argument is made” to preserve error. Briones v. State, 12 S.W.3d
126, 129 (Tex. App.—Fort Worth 1999, no pet.) (citing Ethington, 819 S.W.2d at
858); Johnson v. State, 416 S.W.3d 602, 617 (Tex. App.—Houston [14th Dist.]
30
2013, no pet.) (“When appellant allowed the State to make the complained of
argument on three separate occasions in front of the jury without objection—twice
before objecting and again after objecting—appellant failed to preserve error for
review.”).
We overrule Verdine’s fourth and fifth issues.
Conclusion
We affirm.
Sarah Beth Landau
Justice
Panel consists of Justices Radack, Landau, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
31