Angleton v. State

971 S.W.2d 65, 1998 Tex. Crim. App. LEXIS 70, 1998 WL 264855

• Court: Court of Criminal Appeals of Texas
• Decided: May 27, 1998
• Docket: 1536-97
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOB DISCRETIONARY REVIEW

KELLER, Judge,

delivered the opinion of the Court in which

McCORMICK, Presiding Judge, and MANSFIELD, HOLLAND and WOMACK, Judges, joined.

Appellant has been charged with capital murder. The trial court denied bail, and appellant appealed. The Court of Appeals concluded that the State had failed to show “proof evident” of appellant’s guilt of capital murder; consequently, the trial court was ordered to set a reasonable bail. See Angleton v. State, 955 S.W.2d 655, 659-660 (Tex. App. — Houston [14th] 1997)(lead opinion). See also Tex. Const., Article 1 § 11; Texas Code of Criminal Procedure, Article 16.15. In support of its holding that proof was not evident, the Court of Appeals found that an audio tape offered into evidence by the State had not been properly authenticated. Angle-ton, 955 S.W.2d at 659. In its petitions for discretionary review, the State contends that the Court of Appeals erred with regard to the authentication issue.¹ We agree.²

On April 16, 1997, the police found Doris Angleton, appellant’s wife, dead in her home from a gunshot wound. There were no signs of forced entry at the scene. On April 28, appellant implicated his brother, Roger An-gleton, as possibly being involved in the crime. On July 17, Roger was arrested in Las Vegas, Nevada on an arrest warrant out of California. Subsequently, the Houston police obtained a court order, traveled to Las Vegas, and recovered property found in Roger’s briefcase. Among the property found in the briefcase was an audio tape.

An “enhanced” copy of the audio tape was introduced into evidence, over objection, at the bail hearing. Sergeant David Ferguson testified that he had listened to both the originial and enhanced versions of the tape. He explained that the enhancement merely reduced the background noise:

[DEFENSE COUNSEL]: Are there things on the enhanced version that you can hear that you can’t hear on the other version, that are audible on the enhanced version that are not audible on the other version?

[FERGUSON]: No sir, I wouldn’t — I wouldn’t say that.

[DEFENSE COUNSEL]: You don’t— well, can you — do you know?

[FERGUSON]: Maybe the background, some of the background noises. [DEFENSE COUNSEL]: Don’t speculate with me. Did — there must , have been a reason for enhancement. Was that reason to bring up things that perhaps were not audible on the original?

[FERGUSON]: That was to make the, I guess the parts of the conversation more audible, more — more clear so that you could understand what was being said.

Ferguson admitted that he had no knowledge of the procedures followed in making the enhancement.

Ferguson testified that the recording was a conversation between Roger and appellant. Ferguson explained that he recognized the voices on the tape because he had spoken with both persons on several occasions. He further testified that he had spoken with appellant three times in person and three or four times on the telephone and that he had no doubt in his mind about his identification of appellant’s voice on the tape.

The tape involves two men discussing the planned murder of a woman. The plan included disarming the house alann using code 00032. Appellant admitted to the police that 00032 was the alarm code for his home.

Each of the three judges on the Court of Appeals panel authored an opinion. The “lead” opinion, by Chief Justice Murphy, held that “[t]he State was required to furnish testimony of a witness who could verify the tape was what the State claimed it to be” and that the State had failed to do so. Id. Ae-cording to the lead opinion, the State had failed to do so because (1) Ferguson admitted that he did not have personal knowledge of where, how, when, or who made the tape recording, (2) he could not swear that the tape was an accurate recording of the conversation it purported to represent, (3) he could not testify as to the accuracy of the equipment that made the recording, and (4) he offered no information about the tape other than that it was an “enhanced” copy of the audio tape found in Roger’s briefcase. Id.. The Court of Appeals implicitly held that the above reasons showed a failure of proof of the authentication requirements contained in Tex.R.Crim. Evid. 901(b)(1) and Kephart v. State, 875 S.W.2d 319 (Tex.Crim.App.1994). Angleton, 955 S.W.2d at 659.

Justice Hudson authored a dissenting opinion in which he argued that Kephart should not be interpreted as holding “that the proponent can never authenticate a tape recording without the testimony of a sponsoring witness who is either (1) the maker of the tape or (2) was otherwise a participant in the recorded conversation.” Angleton, 955 S.W.2d at 661 (Hudson, J. dissenting). Instead, Justice Hudson contended that the tape recording could be authenticated under other provisions of Rule 901 that do not require the testimony of a witness with knowledge. Id. at 661-662. He found that the recording was sufficiently authenticated by circumstantial evidence. Id. at 662.

In a concurring opinion, Justice Fowler agreed with the reasoning of the dissent but felt constrained to join the lead opinion because of this Court’s decision in Kephart. Angleton, 664-665 (Fowler J, concurring). Justice Fowler contended that Kephart restricts authentication of a tape to “someone with personal knowledge of where or when the tape was made.” 955 S.W.2d at 664-665.

The authentication requirement for admissibility “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Rule 901(a). Rule 901(b) provides a nonexclusive list of

methods for authenticating evidence. Relevant to the present case are the following:

(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.

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(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

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(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

Rule 901(b)(selected portions).

The standard of review for a trial court’s ruling under one of the rules of evidence is abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). At least under a straightforward reading of Rule 901(a) and the three illustrations set out above, the trial court did not abuse its discretion under the present record.

The State offered the audio tape as an accurate copy of a recording of a conversation between appellant and his brother Roger. The authentication requirements of Rule 901 would be satisfied by evidence sufficient to support a finding to that effect. Thus, in this case the authentication question has three parts: (1) whether the “enhanced” copy accurately depicts the contents of the original tape, (2) whether the voices on the tape are those of Roger and appellant, and (3) whether the depiction of the conversation on the tape as a continuous conversation between the participants is aceuratefi.e. the conversation on the tape is not the result of splicing or some other alteration). The three illustrations of authentication all play a role in resolving this three-part authentication question.³

Part one of the authentication question is proven through illustration (1). Sergeant Ferguson testified that he listened to both the original and enhanced tapes and the enhanced tape merely reduced background noise; no part of the conversation was audible on the enhanced version that was not also audible on the original. Hence, as to whether the tape accurately depicted the contents of the original, Ferguson’s testimony was that of a witness with knowledge. Having listened to both tapes, he could testify that the enhanced tape was an accurate copy of the relevant contents of the original.

Part two of the authentication question is proven through illustration (5). Ferguson identified the voices on the tape as those of Roger and appellant. Ferguson was qualified to make such an identification because he had carried on conversations with both men on several occasions.

Part three of the authentication question is proven through illustration (4). The content of the tape supports its authenticity. Appellant and Roger’s voices were identified as being on the tape. There is no evidence that the tape contained any pauses or breaks in the recording. While the recording is difficult to understand and even unintelligible in some places, nevertheless the recording contains periods of cohesive, coherent conversation. Appellant and Roger discussed using a gun to kill appellant’s wife. And the tape contained discussion regarding the alarm code to appellant’s home and the arming and disarming of that alarm code to further the planned murder. Moreover, the alarm code to one’s home is not the kind of information that tends to be given out casually. While giving an alarm code to a relative may not seem especially strange in and of itself, such information is nevertheless quite sensitive, and the trial court was free to draw an incriminating inference from a non-household member’s possession of such information. This seems especially true in the present case, where appellant subsequently implicated his brother in the crime — suggesting that Roger was not the kind of person to whom one would give one’s home alarm code. Further, the circumstances under which the tape was obtained also support a finding that it is authentic. The tape was found in Roger’s possession in a suitcase during a search conducted by the police pursuant to a warrant. It was neither created by law enforcement personnel nor was it voluntarily released to them. That the tape was essentially wrested from Roger’s control is some evidence that the tape was not a fraudulent composition designed to frame appellant.

In addition, the above analysis is consistent with treatment of this issue in the federal courts. Federal courts addressing the issue have consistently held that the government does not have to prove when, where, how, ■ and by whom tape recordings were made, when those recordings were recovered from the defendant or an alleged co-defendant, were not created as a result of government involvement, were not tampered with, and the defendant is identified as a speaker on the tape. United States v. Mattar-Ballesteros, 71 F.3d 754, 769 (9th Cir.1995), cert. denied, U.S. , — U.S.-, 117 S.Ct. 965, 136 L.Ed.2d 850 (1997)(audio tapes obtained from codefendant); United States v. King, 834 F.2d 109, 114 (6th Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988)(tape recording found at bookmaking site); United States v. Fuller, 441 F.2d 755, 762 (4th Cir.), cert. denied, 404 U.S. 830, 92 S.Ct. 73, 92 S.Ct. 74 (1971). See also United States v. Kandiel, 865 F.2d 967, 974 (8th Cir.l989)(strict compliance, with requirements found in United States v. McMillan, 508 F.2d 101 (8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975) unnecessary where tapes were found in the defendant’s possession). Traditionally, we have looked to interpretations of the Federal Rules of Evidence for guidance in construing our own Rules. Ludwig v. State, 931 S.W.2d 239, 241 (Tex.Crim.App.l996)(citing cases).

Having found that the plain language of Rule 901 and federal caselaw support finding the evidence admissible, we finally turn to the Court of Appeals’ contention that our decision in Kephart holds to the contrary. For authentication, pre-rules caselaw required a party to offer the testimony of a witness with knowledge or to satisfy a seven-pronged test set out in Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977). Kephart, 875 S.W.2d at 320. Kephart suggested that Rule 901 was consistent with the pre-rules authentication requirements. We hold that suggestion to be in error. While the Edwards test and other pre-rules caselaw may often yield the same results and may sometimes employ similar reasoning to that required under Rule 901, that is not invariably the case. And, we find that attempting to cling to the Edwards test after the enactment of Rule 901 will result in unwarranted confusion for practitioners, trial courts, and appellate courts. Rule 901 is straightforward, containing clear language and understandable illustrations. Kephart is overruled.

Hence, we conclude that the trial court did not abuse its discretion in ruling that the audio tape was properly authenticated. We reverse the judgment of the Court of Appeals and remand the case to that Court to reconsider the issue of proof evident.⁴

MEYERS, J., filed a dissenting opinion in which BAIRD, OVERSTREET and PRICE, JJ., joined.

1 . This ground is contained in petitions from the Harris County District Attorney’s Office and the State Prosecuting Attorney’s Office.

2 . We also granted a second ground for review, contained in the District Attorney’s petition, regarding the proof evident issue as a whole. We dismiss that ground without prejudice.

3 . Judge Meyers construes our observation here as establishing a "three-part test.” On the contrary, we merely observe that the authetication question in the present case appears to implicate three of the examples of authentication at three different levels. Nothing in this opinion should be construed as limiting the ability of parties to establish authentication in accordance with the plain language of Rule 901.

4 . Judge Meyers contends we should not. have conducted the authentication analysis ourselves but should have simply overruled Kephart and remanded for the Court of Appeals to conduct the evidentiary analysis. However, the authentication analysis in the present case is a good illustration of why Kephart was wrongly decided. That analysis clearly shows that, contrary to our .pronouncement in Kephart, the Edwards lest is not in fact the equivalent of the authentication requirement of Rule 901. The Court of Appeals is, of course, free to assess the weight of such evidence, in the first instance, in its proof evident analysis on remand.