Andre Jackson v. State ( 2021 )

Affirmed and Opinion filed February 23, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00168-CR
ANDRE JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1601749
OPINION
Appellant Andre Jackson appeals his conviction for aggravated robbery with
a deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(2). He argues (1) the trial
court abused its discretion by admitting evidence unlawfully seized from his
locked vehicle; (2) his trial counsel was ineffective because he failed to challenge a
venire member for cause after the venire member admitted he could not disregard
illegally obtained evidence; and (3) the trial court abused its discretion by
admitting surveillance videos that were not properly authenticated. We affirm.
BACKGROUND
Appellant was indicted for aggravated robbery with a deadly weapon and a
jury trial was held in January and February 2019. At trial, K. Baney, asset
protection manager for EZ Pawn pawnshops, testified she was informed of a
robbery in progress at the EZ pawnshop on Mykawa Road in Houston on July 22,
2016. She “logged into the DVR immediately, as [she] already had the DVRs for
the company up” to access the Mykawa pawnshop’s surveillance videos. Baney
testified as to what she viewed on the surveillance videos and the State also played
the videos for the jury.
The videos showed that, at approximately 9:35 a.m., a blue sedan pulled into
a Fiesta store parking lot that was some distance away from the pawnshop. About
one minute later, a red SUV pulled into the same parking lot and parked a few
spots away from the blue sedan. A man, identified as Appellant, exited the SUV
and walked to the blue sedan to talk to the occupants. Shortly thereafter, Appellant
and a woman, identified as Megan Lecour, walked across the parking lot, entering
the pawnshop at 9:38 a.m. They spent over an hour there, which Baney thought
was unusual because most customers typically spend 15 minutes in the shop.
About 25 minutes before the robbery, the blue sedan left its original parking
spot and parked close to the pawnshop entrance. Shortly before the robbery, both
Appellant and Lecour can be seen on their phones. Two gunmen got out of the
blue sedan and entered the pawnshop around 10:50 a.m., and Appellant and Lecour
quickly exited the pawnshop. Lecour got into the blue sedan and drove away.
Appellant got into the red SUV. After robbing the pawnshop, the gunmen left the
store (one of them carrying a black garbage bag) at 10:57 a.m. and ran towards the
Fiesta parking lot. The red SUV driven by Appellant stopped for the gunmen, who
then entered the SUV, and all drove off. The gunmen stole jewelry worth over
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$20,000 and cash.
Baney testified the stolen jewelry contained GPS tracking devices, and she
was notified of the tracking devices’ location via her cell phone after the robbery.
Baney provided the location tracking information to the police and proceeded to
the location. When she arrived at the location based on the jewelry tracking
information, she saw the red SUV, the blue sedan, and several police officers who
had already arrived. Inside the red SUV, Baney observed a trash bag, clothes,
cash, and a firearm. Baney got her laptop from her car, accessed the pawnshop’s
surveillance videos remotely, and relayed the surveillance footage to the police
officers on the scene. After the police opened the SUV and the black trash bag,
Baney “could see the collateral envelopes with [the] store number on it” and
identified the stolen inventory jewelry as well as jewelry from the store’s display
cases.
Several police officers who had answered a robbery in progress call at the
Mykawa EZ pawnshop that morning also testified at trial. Officer Marin testified
that after he received the initial call, he was informed a red Expedition SUV fled
the scene. Officer Marin was then redirected to an address on Kingsbury Street.
As he approached Kingsbury Street, he saw a red Expedition turn onto Kingsbury
and pull into a driveway at 5234 Kingsbury. He saw Appellant and a woman exit
the SUV quickly. When they saw police, they ran away—the woman ran into the
house, and Appellant ran around the house, jumping over the rear fence. Officer
Marin tried to cut Appellant off, but other police officers who had arrived at the
scene caught Appellant and placed him in the back of a police car. Police officers
also detained the two gunmen and the woman.
Officer Marin looked inside the red SUV parked in the driveway. He saw
clothes and a black trash bag on the backseat as well as weapons and money on the
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rear floor board. He retrieved the keys and unlocked the SUV. Officer Marin and
other officers searched the car and recovered clothing, two loaded weapons,
money, and the stolen jewelry from the EZ Pawn pawnshop. After Appellant was
arrested, he admitted in a video-recorded interview to knowing about the planned
robbery of the EZ Pawn pawnshop and that he waited at the scene to drive the
gunmen away. DNA linked Appellant and the two gunmen to clothing items
recovered in the SUV.
The jury convicted Appellant of aggravated robbery with a deadly weapon,
and the trial court sentenced him to 28 years’ confinement. Appellant filed a
timely appeal.
ANALYSIS
I. Motion to Suppress
Appellant argues in his first issue that the trial court abused its discretion by
admitting the evidence seized from his SUV after overruling his motion to
suppress. Appellant contends (1) “[t]he automobile exception to the Fourth
Amendment does not permit a police officer, uninvited and without a warrant, to
enter the curtilage of a home in order to search a vehicle parked therein”; and (2)
“the exigent circumstances exception to the warrant requirement do[es] not permit
the warrantless search of a locked vehicle parked on the curtilage of a home where
there is no imminent risk of death or serious injury, or danger that evidence will be
immediately destroyed, or that a suspect will escape.”
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim.
App. 2019); Vasquez v. State, 324 S.W.3d 912, 918 (Tex. App.—Houston [14th
4
Dist.] 2010, pet ref’d). We afford almost total deference to a trial court’s
determination of historical facts. Ruiz, 577 S.W.3d at 545. In a suppression
hearing, the trial court is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. Valtierra v. State, 310
S.W.3d 442, 447 (Tex. Crim. App. 2010); Aviles-Barroso v. State, 477 S.W.3d
363, 380 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). The trial court is
entitled to believe or disbelieve all or part of a witness’s testimony, even if that
testimony is uncontroverted, because the trial court has the opportunity to observe
the witness’s demeanor and appearance. Valtierra, 310 S.W.3d at 447; Aviles-
Barroso, 477 S.W.3d at 380.
If the trial court makes express findings of fact, we view the evidence in the
light most favorable to its ruling and determine whether the evidence supports
those factual findings. Valtierra, 310 S.W.3d at 447; State v. Smith, 335 S.W.3d
706, 714 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). If the trial court does
not enter findings of fact, we must view the evidence in the light most favorable to
the trial court’s ruling and assume it made implicit findings of fact that support its
ruling as long as those findings are supported by the record. Valtierra, 310 S.W.3d
at 447.
We review a trial court’s application of the law to the facts de novo. Ruiz,
577 S.W.3d at 545; Aviles-Barroso, 477 S.W.3d at 380; see also Valtierra, 310
S.W.3d at 447. We will sustain the trial court’s ruling if it is reasonably supported
by the record and is correct on any theory of law applicable to the case. Ruiz, 577
S.W.3d at 545; Adams v. State, 397 S.W.3d 760, 763 (Tex. App.—Houston [14th
Dist.] 2013, no pet.).
B. Suppression Hearing
At the motion to suppress hearing, Officer Marin testified that he answered a
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dispatch for a robbery in progress at the EZ Pawn pawnshop in the morning of July
22, 2016. He testified that dispatch informed him “the subject had fled the scene in
a red Expedition” and redirected him to an address on Kingsbury Street. As
Officer Marin approached Kingsbury Street, he saw a red Expedition turn onto
Kingsbury. He made a U-turn and observed the red Expedition pull into the
driveway of a house on Kingsbury. Officer Marin saw Appellant getting out of the
driver’s seat and a woman getting out of the passenger seat. Appellant “started
walking real fast around the backside of the house. And then he fled over the
fence.” Officer Marin and his partner “went down the street to try to circle back
around to see if [they] could cut him off” with their police car. As Officer Marin
pursued Appellant, other police officers who had arrived at the scene caught
Appellant and placed him in the back of a police car. Police officers also detained
the two gunmen and the woman.
Officer Marin testified he returned to the scene, saw Appellant sitting in a
police car, and identified Appellant as the man he saw exit the red Expedition and
flee. He then looked inside the red Expedition that Appellant had parked in the
driveway to look for evidence and weapons. Officer Marin testified he saw clothes
and a black trash bag on the backseat as well as weapons and money on the rear
floor board. He testified that once he saw what was in the car and was “told by the
command center that the trackers are going off in that [trash] bag,” he called the
District Attorney’s Office to ask if he could retrieve the keys from Appellant since
Appellant had refused access to the SUV. He was advised to retrieve the keys and
remove the property from the SUV. Officer Marin then searched the vehicle and
recovered clothing, two loaded weapons, money, and the trash bag containing
stolen jewelry with the tracking devices from the pawnshop.
Officer Marin testified that it was important to search the SUV quickly so he
6
could locate the stolen property and the weapons to ensure police had detained the
correct suspects. He explained that if the police detained the wrong suspects, the
armed pawnshop robbers would still be at large and pose a threat to the
community. He testified, “I wasn’t sure that those were all the suspects. I had to
make sure those were the guns and everything else that they used in the robbery to
make sure we had the right suspects.”
No other witnesses testified at the suppression hearing. Appellant sought to
suppress evidence recovered from the SUV and argued that police unlawfully
entered the home’s curtilage and searched his SUV when they entered the
driveway and looked through the windows of his vehicle for evidence. The State
argued that the court did not need to decide whether the driveway was a curtilage
because Appellant lacked standing to complain about the police entering a
driveway in which he showed no privacy interest.
With regard to standing, Appellant responded that (1) the SUV belonged to
him; (2) the driveway was a part of the home’s curtilage because it was semi-
private and separated from the neighbor’s property by a fence on one side; and (3)
he need not have a property interest in the home to assert a Fourth Amendment
claim regarding his vehicle. He asserted that the police looking through his SUV’s
windows while it was parked in the driveway constituted an unlawful search.
Appellant further argued that the subsequent unlocking and search of his vehicle
was unlawful because the automobile exception to the warrant requirement did not
apply absent exigent circumstances and there was no exigency once police had
arrested him and taken his car keys.
The State countered that (1) police looking through his car windows did not
violate the Fourth Amendment because Appellant failed to establish he had a
privacy interest in the home’s driveway and thus standing; and (2) even if
7
Appellant established he had standing, he failed to show the driveway constituted
part of the home’s curtilage. The State also contended that the automobile
exception to the warrant requirement requires no exigency and applies in this case;
even if the automobile exception required exigent circumstances, such
circumstances existed in this case because the police had to make sure they had the
correct suspects in custody for the safety of the community.
C. Standing
On appeal, as in the trial court, Appellant challenges two allegedly unlawful
searches and correspondingly makes two separate arguments. First, he claims
Officer Marin looking through his SUV’s windows constitutes an unlawful search
because the driveway in which his vehicle was parked qualifies as the home’s
curtilage. Second, Appellant contends that the opening of his SUV and subsequent
search thereof was unlawful because no exigent circumstances existed to permit
police to search his locked vehicle. We begin by addressing Appellant’s first
argument.
Because Appellant’s argument focuses on whether the driveway in which his
SUV was parked qualifies as the home’s curtilage, the issue before us is not
Appellant’s expectation of privacy in his SUV. Instead, the issue is whether
Appellant met his burden to establish he had a reasonable expectation of privacy in
the home and, thus, standing to complain about the intrusion upon the home’s
curtilage. The State contends Appellant lacks Fourth Amendment standing
because he did not show any ownership or possessory interest in the home.
The purpose of the Fourth Amendment to the United States Constitution is
to safeguard a person’s legitimate expectation of privacy from unreasonable
government intrusions. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.
1996). “Proof of a ‘reasonable expectation of privacy’ is at the forefront of all
8
Fourth Amendment claims.” Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App.
2004). A defendant has no standing to complain about the invasion of someone
else’s personal rights. Id. The rights protected by the Fourth Amendment are
personal. Matthews v. State, 431 S.W.3d 596, 606 (Tex. Crim. App. 2014).
Therefore, a defendant must show that the search violated his, rather than a third
party’s, legitimate expectation of privacy. Id. To carry his burden of proof and
demonstrate a legitimate expectation of privacy, a defendant must show that (1)
“by his conduct, he exhibited an actual subjective expectation of privacy, i.e., a
genuine intention to preserve something as private;” and (2) “circumstances
existed under which society was prepared to recognize his subjective expectation
as objectively reasonable.” Villarreal, 935 S.W.2d at 138; see also Matthews, 431
S.W.3d at 606.
In determining whether a person’s expectation of privacy is reasonable, we
must examine the totality of circumstances surrounding the search and consider a
non-exhaustive list of factors, including whether (1) the defendant had a property
or possessory interest in the place invaded; (2) he was legitimately in the place
invaded; (3) he had complete dominion or control and the right to exclude others;
(4) before the intrusion, he took normal precautions customarily taken by those
seeking privacy; (5) he put the place to some private use; and (6) his claim of
privacy is consistent with historical notions of privacy. Matthews, 431 S.W.3d at
607; Villarreal, 935 S.W.2d at 138. Although we defer to the trial court’s factual
findings, we review the legal issue of standing de novo. Matthews, 431 S.W.3d at
607; State v. Betts, 397 S.W.3d 198, 204 (Tex. Crim. App. 2013).
Appellant makes no argument regarding any of the six factors listed above.
Additionally, our review of the evidence presented at the suppression hearing (and
at trial) does not show that Appellant had a property or possessory interest in the
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house and therefore had no such interest in the driveway of the house. See
Matthews, 431 S.W.3d at 607. There is also no evidence that Appellant was
legitimately in the driveway; he presented no evidence that he was at least a
welcome overnight guest of the person in whose driveway he parked his SUV or
that he at a minimum had permission to park there. See Minnesota v. Olson, 495
U.S. 91, 98 (1990) (holding overnight guests have legitimate expectation of
privacy in their host’s home). Additionally, Appellant presented no evidence that
he had unrestricted access to the house and driveway, dominion or control over the
house and driveway, or the right to exclude others from the house and driveway.
See Matthews, 431 S.W.3d at 607. Similarly, there is no evidence Appellant took
any precautions to ensure the privacy of his SUV; he did not place a cover over the
vehicle or place anything in its path to obscure it from plain view. See Mohammed
v. State, No. 02-15-00127-CR, 2016 WL 3659113, at *6 (Tex. App.—Fort Worth
July 7, 2016, no pet.) (mem. op., not designated for publication).
The State does not dispute that Appellant had a reasonable expectation of
privacy in his vehicle; however, that does not by itself entitle him to an expectation
of privacy in the house and the adjacent driveway where he parked his vehicle.
See id. at *6-7. Appellant has to articulate and prove the basis for a reasonable
expectation of privacy. See id. In this case, Appellant failed to meet his burden to
show he had a reasonable expectation of privacy in the house and driveway to
correspondingly establish standing to contest the government’s entry onto the
driveway to look through the windows of his parked SUV.
After examining the evidence in the record, we hold Appellant did not prove
he has standing to contest the government’s entry onto the driveway of the house.
Therefore, the trial court did not err in denying Appellant’s motion to suppress.
D. Warrantless Search
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We next turn to Appellant’s argument that the police conducted an unlawful
search of his SUV because “the exigent circumstances exception to the warrant
requirement do[es] not permit the warrantless search of a locked vehicle parked on
the curtilage of a home where there is no imminent risk of death or serious injury,
or danger that evidence will be immediately destroyed, or that a suspect will
escape.”
The Fourth Amendment protects against unreasonable searches and seizures
by government officials. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17,
24 (Tex. Crim. App. 2007). Evidence seized by the police without a warrant may
be admitted only if an exception to the Fourth Amendment’s warrant requirement
applies. Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008). A defendant
challenging the admission of evidence on the basis of the Fourth Amendment bears
the initial burden to prove that the search occurred without a warrant. Id. If the
defendant meets his burden, the burden shifts to the State to prove that an
exception applies. Id.
One such exception is the automobile exception; it provides that law
enforcement officers may lawfully conduct a warrantless search of a vehicle if it is
readily mobile and there is probable cause to believe the vehicle contains evidence
of a crime. Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009); Neal,
256 S.W.3d at 282; see also Wiede, 214 S.W.3d at 24. The justifications for the
automobile exception are that vehicles are inherently mobile and the privacy
expectation with respect to one’s vehicle is significantly less than the privacy
expectation in one’s home. See Wiede, 214 S.W.3d at 24; see also Keehn, 279
S.W.3d at 335. Thus, a vehicle may be searched on the basis of probable cause
and exigent circumstances are not required. Neal, 256 S.W.3d at 283 (“The
automobile exception . . . does not require exigent circumstances.”); Dixon v. State,
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206 S.W.3d 613, 619 n.25 (Tex. Crim. App. 2006) (“As the Supreme Court stated,
a finding of probable cause ‘alone satisfies the automobile exception to the Fourth
Amendment warrant requirement.’”); State v. Guzman, 959 S.W.2d 631, 634 (Tex.
Crim. App. 1998) (“[T]he automobile exception to the Fourth Amendment of the
United States Constitution does not require the existence of exigent circumstances
in addition to probable cause.”).
Probable cause exists when reasonably trustworthy facts and circumstances
within the knowledge of a police officer on the scene would lead a reasonable
person to believe that an instrumentality of a crime or evidence pertaining to a
crime will be found. Hyland v. State, 574 S.W.3d 904, 910 (Tex. Crim. App.
2019). In determining probable cause, we must consider the totality of the
circumstances. Marcopoulos v. State, 538 S.W.3d 596, 600 (Tex. Crim. App.
2017); Wiede, 214 S.W.3d at 25. The sum of the facts and circumstances known to
law enforcement officers at the time of a search is considered in assessing whether
there was sufficient probable cause. Wiede, 214 S.W.3d at 26; Curry v. State, 228
S.W.3d 292, 295 (Tex. App.—Waco 2007, pet. ref’d).
Here, the automobile exception gave law enforcement the right to enter
Appellant’s red Expedition and lawfully search it. See Keehn, 279 S.W.3d at 335-
36. The SUV was readily mobile as evidenced by Appellant’s use of it just
minutes earlier when he fled the scene of the robbery. There was also probable
cause to search the SUV. Officer Marin testified that he was informed by dispatch
that a red Expedition had fled the robbery scene and that he was then instructed to
drive to Kingsbury Street by dispatch. As he approached Kingsbury Street, he
observed a red Expedition pull into the driveway of a house on Kingsbury. Officer
Marin saw Appellant getting out of the driver’s seat of the SUV, “walking real fast
around the backside of the house”, and then fleeing “over the fence.” After
12
Appellant was caught and taken into custody, Officer Marin looked inside the red
Expedition that Appellant had parked in the driveway to look for evidence and
weapons. He saw clothes and a black trash bag on the backseat as well as weapons
and money on the rear floor board. He testified that he was “told by the command
center that the trackers are going off in that [trash] bag.” Taken together, these
facts would have caused a reasonable person to believe that the SUV was
Appellant’s vehicle and likely contained evidence of the robbery committed at the
EZ Pawn pawnshop.
We conclude that the search of Appellant’s vehicle was lawful under the
automobile exception to the warrant requirement, and we reject Appellant’s
contention that the warrantless search was unlawful because there were no exigent
circumstances at the time of the search when Appellant was already in custody and
there was no “danger that evidence will be immediately destroyed.”
Further, the court of criminal appeals confirmed that the automobile
exception requires that probable cause exist; it does not require exigent
circumstances to justify a warrantless search. See Keehn, 279 S.W.3d at 335-36
(finding that police under the automobile exception lawfully conducted a
warrantless search of defendant’s van parked in his driveway because police had
probable cause to believe contraband was in the van after observing the contents of
the van through the van window; stating that “the ‘ready mobility’ of a vehicle
creates ‘an exigency’” and requiring no exigent circumstances).
The search of Appellant’s SUV parked in a driveway was lawful under the
automobile exception to the warrant requirement, and the trial court did not err in
denying Appellant’s motion to suppress. Accordingly, we overrule Appellant’s
first issue.
II. Ineffective Assistance of Counsel
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Appellant argues in his second issue that his trial counsel was ineffective
because she failed to challenge for cause a venire member who admitted he could
not disregard illegally obtained evidence.
A. Governing Law
To prevail on a claim of ineffective assistance of counsel, an appellant must
show that (1) trial counsel’s performance was deficient because it fell below an
objective standard of reasonableness; and (2) the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 689 (1984); Lopez v. State,
343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
In order to satisfy the first prong, appellant must prove by a preponderance
of the evidence that trial counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms. Lopez, 343 S.W.3d at 142. A
defendant must overcome a strong presumption that trial counsel’s actions fell
within the wide range of reasonable and professional assistance. See id.; Garza v.
State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). “Before granting relief on a
claim that defense counsel failed to do something, we ordinarily require that
counsel be afforded the opportunity to outline the reasons for the omission.”
Roberts v. State, 220 S.W.3d 521, 533-34 (Tex. Crim. App. 2007).
If trial counsel’s reasons for his conduct do not appear in the record and
there is at least the possibility that the conduct could have been grounded in
legitimate trial strategy, we will typically defer to counsel’s decisions and deny
relief on an ineffective assistance claim. Garza, 213 S.W.3d at 348. “‘It is not
sufficient that appellant show, with the benefit of hindsight, that his counsel’s
actions or omissions during trial were merely of questionable competence.’”
Lopez, 343 S.W.3d at 142-43 (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex.
Crim. App. 2007)). Absent a record sufficient to demonstrate that trial counsel’s
14
conduct was not the product of a strategic or tactical decision, we should presume
that trial counsel’s performance was constitutionally adequate “unless the
challenged conduct was so outrageous that no competent attorney would have
engaged in it.” State v. Morales, 253 S.W.3d 686, 696-97 (Tex. Crim. App. 2008)
(en banc) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005)).
To satisfy the second prong, an appellant must show that there is a
reasonable probability — or a probability sufficient to undermine confidence in the
outcome — that the result of the proceeding would have been different but for trial
counsel’s unprofessional errors. Lopez, 343 S.W.3d at 142. In determining
whether counsel was ineffective, we consider the totality of the circumstances of
the particular case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Any allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness. Id.; see also
Goodspeed, 187 S.W.3d at 392 (“Direct appeal is usually an inadequate vehicle for
raising [an ineffective assistance] claim because the record is generally
undeveloped.”). Failure to satisfy either prong of the Strickland test defeats an
ineffective assistance claim. Strickland, 466 U.S. at 697.
B. Voir Dire
During voir dire, venire member 20 (“Juror 20”), who ultimately served on
the jury, expressed his concern to the prosecutor that a getaway driver is less
culpable than the actual gunman and should therefore not “be charged with the
same crime.” Juror 20 stated that he was “not sure” if he could find the person
who acted as a party “guilty of the same crime of the one that actually committed
the offense”. He also stated that his grandfather had been beaten and put in a car
trunk, “and that left an emotional issue.” He could not be completely certain that
15
experience would not have an effect on him in this case. In response to defense
counsel’s question whether he could disregard illegally obtained evidence, Juror 20
was one of several venire members who could not assure defense counsel he could
disregard illegally evidence “in all cases”.
During the bench conference, defense counsel and the prosecutor listed their
challenges for cause. The trial court then inquired if “[e]ither side want[ed] to call
anyone up.” One of Appellant’s trial counsels responded, “N[umber] 20, Judge,
grandfather was robbed, beaten up and kidnapped”, but Appellant’s lead counsel
stated, “No, I don’t want to challenge him.” No one discussed Juror 20 any
further, and he was seated on the jury.
C. Counsel’s Performance
We first address whether Appellant proved that his trial counsel’s
performance was deficient for not challenging Juror 20. We conclude Appellant
has not carried his burden of proof under the first Strickland prong.
The record in this case is devoid of any explanation for why Appellant’s trial
counsel did not challenge Juror 20. The record contains no motion for new trial
based on ineffective assistance, an accompanying hearing, nor any affidavits.
Although not clear from his briefing, to the extent Appellant asserts that his trial
counsel’s performance was deficient because no competent counsel would refuse
to challenge a biased juror, the court of criminal appeals has repeatedly rejected
that contention. See, e.g., Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994) (holding there was no deficient performance on a silent record when counsel
did not strike a juror who said his prior experience as a victim of a burglary would
probably impact his impartiality in the trial of the defendant for robbery); Delrio v.
State, 840 S.W.2d 443, 445 (Tex. Crim. App. 1992) (per curiam) (holding no
deficient performance on a silent record when counsel did not challenge a juror
16
who was an ex-narcotics officer and admitted during voir dire that he could not be
impartial); see also Morales, 253 S.W.3d at 698 (“trial counsel must be permitted
to make a strategic or tactical decision to retain a juror who is only presumably
biased”) (emphasis omitted).
Additionally, there is no basis to find that trial counsel’s refusal to
challenge Juror 20 for cause was not motivated by strategy. Lead counsel’s
insistence that she did not want to challenge Juror 20 for cause after her co-counsel
suggested questioning Juror 20 because his grandfather had been beaten and
kidnapped shows a strategic decision on her part to refrain from doing so.
Appellant’s trial counsel did not neglect or forget to challenge Juror 20; she made a
deliberate and conscious decision. Her strategic decision could have been
motivated by the juror’s statements during voir dire that a getaway driver should
not be charged with the same crime as the actual gunmen in a robbery. Regardless,
the silent record before us does not show trial counsel’s conduct “was so
outrageous that no competent attorney would have engaged in it.” See Morales,
253 S.W.3d at 696-97. We cannot conclude trial counsel’s performance was
deficient.
Because Appellant failed to prove the first Strickland prong, we reject his
argument that he was denied effective assistance of counsel. Accordingly, we
overrule Appellant’s second issue.
III. Authentication of Surveillance Videos
Appellant argues in his third issue that the trial court abused its discretion
“by admitting surveillance videos without proper authentication under Texas Rule
of Evidence 901.” He claims that Baney, who testified she was the asset protection
manager and custodian of records for EZ Pawn pawnshops, “was not a witness
with ‘personal knowledge who observed the robbery incident’”; and therefore she
17
could not properly authenticate the surveillance videos of the robbery offered by
the State as State’s exhibit 4.
The State counters that Appellant failed to preserve any alleged error
because he made no objection to authentication before the trial court admitted the
surveillance videos. The State also asserts that, “even had appellant preserved his
authenticity objection, the State sufficiently authenticated the recordings to support
the trial court’s ruling on admissibility.”
Assuming for the sake of argument that Appellant preserved his complaint
for review, there is no error because the trial court acted within its discretion when
it allowed admission of the surveillance videos in State’s exhibit 4.
A. Standard of Review and Governing Law
Texas Rule of Evidence 901 governs the authentication requirements for the
admissibility of evidence. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App.
2018). “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. Among other
options, authenticity may be established 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.” Id. 901(b)(4). “Video recordings without audio are treated
as photographs and are properly authenticated when it can be proved that the
images accurately represent the scene in question and are relevant to a disputed
issue.” Fowler, 544 S.W.3d at 849.
On appeal, we review a trial court’s ruling on authentication issues under an
abuse of discretion standard. Id. at 848. This deferential standard requires us to
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uphold a trial court’s admissibility decision when that decision is within the zone
of reasonable disagreement. Id. A trial court is given considerable latitude with
regard to its evidentiary rulings, and different trial courts may “reach different
conclusions in different trials on substantially similar facts without abusing their
discretion.” Id. (quoting Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim.
App. 2007)).
In a jury trial, it is the jury that ultimately determines whether an item of
evidence is 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).
Conclusive proof of authenticity before the admission of disputed evidence is not
required; Rule 901 only requires some evidence sufficient to support a finding that
the evidence at issue is what the proponent claims. Fowler, 544 S.W.3d at 848.
The standard for admissibility is considered a liberal one. Id. at 849.
B. Application
In determining whether the trial court improperly admitted surveillance
videos of the EZ Pawn pawnshop robbery contained in State’s exhibit 4, we find
the court of criminal appeals opinion in Fowler instructive.
Fowler involved the admission of video evidence that showed the defendant
purchasing items that were allegedly used in the theft of an ATV, and the receipt
for these items was later found by police near the stolen ATV. Id. at 846-47, 848.
Police used the receipt to locate the store where the items had been purchased and
the store’s manager provided police with the relevant video footage by using the
date and time on the receipt. Id. at 846.
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 The Fowler court explained that “even though the most common way to
authenticate a video is through the testimony of a witness with personal knowledge
who observed the scene, that is not the only way”; evidence can also be
authenticated by the “‘appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the circumstances.’”
Id. at 849 (emphasis in original) (quoting Tex. R. Evid. 901(b)(4)). The court
affirmed the trial court’s admission of the store video over an authenticity
objection based on circumstantial evidence demonstrating: (1) the police officer
made an in-person request of the store manager to pull the surveillance video from
a certain date and time; (2) the video possessed the distinctive characteristic of
having a date and time stamp; (3) the date and time on the video corresponded to
the date and time on the receipt that was found within three feet of the stolen ATV;
and (4) the video pulled by the store manager showed the defendant at the store on
the specific date at the specific time purchasing the items listed on the receipt that
was found near the stolen ATV. Id. at 849-50.
The court noted that the State could have produced testimony from witnesses
who could have further authenticated the videotape, such as the manager of the
store who pulled the videotape from the shelf, the employee of the store who was
responsible for maintaining the surveillance equipment, or the employee of the
store who was working the specific cash register on the exact date and at the exact
time on the videotape. Id. at 850. Nonetheless, the court held that the trial court’s
determination — that the police officer supplied sufficient facts to support a
reasonable jury determination that the video was authentic — was a decision
within the zone of reasonable disagreement. Id.
Here, Baney testified that she is a divisional asset protection manager for EZ
Pawn pawnshops, and some of her daily duties include risk assessment, robbery
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response, securing evidence, researching losses, and working with local police.
Baney testified that she was notified by a district manager that there was a robbery
in progress at the pawnshop on Mykawa Road on July 22, 2016. In response to
that notification, Baney immediately logged into the EZ Pawn company DVR and
started watching the pawnshop’s surveillance videos. Baney explained that the
pawnshop had several cameras outside as well as inside the pawnshop. She
identified State’s exhibit 4 as business records of EZ Pawn. She testified that she
is the custodian of records for EZ Pawn, that she kept the Mykawa pawnshop
surveillance videos in the regular course of business, and that the videos were
made at or near the time the robbery occurred.
Baney explained that the surveillance videos in State’s exhibit 4 were made
for the purpose of documenting incidents like the robbery. The surveillance videos
displayed (1) the specific camera numbers for the various angles inside and outside
the pawnshop, (2) the July 22, 2016 date stamp, (3) the beginning time of 8:49
a.m., and (4) the ending time of 11:01 a.m. The videos also showed Appellant and
Lecour spending over one hour inside the pawnshop before the robbery as well as
the gunmen committing the robbery. Further, the robbery occurred between 10:50
a.m. and 10:57 a.m. at the Mykawa pawnshop on July 22, 2016, which is the date,
time, and location displayed on the surveillance videos.
We conclude the State presented sufficient evidence to support a jury
determination that the surveillance videos in State’s exhibit 4 were authentic. See
Fowler, 544 S.W.3d at 849-50. The trial court’s determination therefore was
within the zone of reasonable disagreement, and the trial court did not abuse its
discretion in admitting the surveillance videos. Accordingly, we overrule
Appellant’s third issue.
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CONCLUSION
We affirm the trial court’s judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Bourliot, Hassan, and Poissant.
Publish — Tex. R. App. 47.2(b).
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