COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-15-00227-CR
FRED MOORE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY TRIAL COURT NO. CR-2014-06840-A
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant Fred Moore appeals his conviction for Class A misdemeanor
assault with an affirmative finding of family violence. See Tex. Penal Code Ann.
§ 22.01(a) (West Supp. 2015) (setting forth elements of assault); Tex. Code
Crim. Proc. Ann. art. 42.013 (West 2006) (setting forth when a finding of family
1 See Tex. R. App. P. 47.4. violence shall be made). In two issues, Moore argues that the trial court erred by
admitting the audio recording of a 911 call and by denying his motion for directed
verdict. We will affirm.
II. BACKGROUND
Jennifer Dooley, a 911 dispatcher with the Denton Police Department,
testified that she received a call on April 26, 2014, regarding an assault in
progress. The caller said that a black male had grabbed a black female by the
face, had hit her in the face, and had dragged her across the street. The caller
said that this incident occurred near Taliaferro Street. Dooley testified that the
caller was relaying information about the altercation as she was seeing it. Over
objection, the recording of this 911 call was admitted into evidence as State’s
Exhibit 1 and was played for the jury.2
Nancy Wimberley also witnessed the incident and also made a call to 911
because the woman looked like she was in distress and needed help. Wimberley
testified that she had just left a home after providing care for a disabled client
when she saw a struggle between a man and a woman that was occurring
approximately six feet from her as she traveled on Taliaferro Street. Wimberley
said that the two were arguing, though she could not hear the words; that the
man was holding the woman’s wrists against her will; and that the woman was
trying to get away. The 911 dispatcher asked Wimberley if the man was wearing
2 The caller from this 911 call did not testify at the trial.
2 a blue shirt and the woman was wearing a purple shirt. Wimberley confirmed
that they were, and the 911 dispatcher told Wimberley that help was already on
the way. Over objection, this second 911 call was admitted into evidence as
State’s Exhibit 2 and was played for the jury.3
Officer Alfonso Orozco with the Denton Police Department testified that he
responded to a call for an assault in progress in the 2200 block of North Elm on
April 26, 2014. When he arrived, there were not a lot of people on the sidewalk
or in the street in that area, so he was able to quickly identify the black male
wearing a blue shirt and the black female wearing a purple shirt. Officer Orozco
testified that he yelled at the female, who was leaving the scene, to come back
but that she ignored him and kept walking. Officer Orozco spoke with the black
male, whose license identified him as Frederick Lafon Moore II, and noted that
he was “pretty angry, agitated.” When Officer Orozco informed Moore that the
police had received a call that Moore had assaulted a female, he denied having
assaulted the female and said that he had been harassed and assaulted by the
female, who was later identified as Kayla Chambers.
Officer Orozco testified that Chambers was arrested on an outstanding
warrant and was taken to jail. Photographs taken of Chambers at the jail
revealed that she had scratches on her face and neck and some scuff marks on
3 Relevant transcriptions of the 911 calls are set forth in the analysis of Chambers’s second issue and demonstrate that the first 911 call provided more details and information than the second 911 call.
3 her lower legs by her ankles. Officer Orozco opined that the scuff marks near
Chambers’s ankles were made by the concrete as witnesses saw Moore
dragging Chambers and that the scratches on Chambers’s neck had resulted
from Moore’s pulling Chambers’s shirt and collar, scratching the side and back of
her neck. Officer Orozco was not sure what had caused the scratch on
Chambers’s cheek but opined that it was a fingernail scratch.
Officer Orozco testified that the scratches were red and were not scabbed
over and that, based on his experience, they had been made within an hour.
Based on the totality of the circumstances—including the information he had
received from the 911 callers that Chambers had been punched and a slapped,
Moore’s emotional state, the fact that Chambers was walking away from Moore,
and Chambers’s injuries—Officer Orozco concluded that an assault causing
bodily injury had occurred.
Chambers, who described herself as Moore’s girlfriend, testified that she
had been in a relationship with Moore for several years and that they were living
together on April 26, 2014. Chambers said that around 4:00 p.m. on April 26,
2014, she and Moore were on the way to the grocery store and were discussing
how much money they had available to spend. She said that they do not own a
vehicle, that it was hot, and that it was too much trouble to carry groceries back
home. Moore told her that his sister was going to pick them up from the grocery
store and take them home. Chambers testified that she did not have a
disagreement or an argument with Moore and that the only words they
4 exchanged that could be construed as arguing were that she did not want to
have to walk back home with the groceries. Chambers testified that Moore did
not strike, slap, or punch her while they were outside talking about their finances,
nor did he put his hands around her neck. Chambers said that when the police
arrived, Moore told her to go ahead and go to the grocery store and that he
would meet her there; she said he then walked back across the street.
Chambers said that she started walking toward the grocery store, and
when she came to the end of the street, she was approached by a police officer.
The officer told her that she fit the description of a woman whom a 911 caller had
seen being assaulted. Chambers told the officer that she had not been assaulted
and that she did not understand why he had approached her.4
Officer James Bolin testified that he arrived on the scene of the incident
and made contact with a female who was walking away. Officer Bolin testified
that the female was wearing a purple shirt and was crying. Officer Bolin asked if
she was okay and what had happened; the female said that she was fine and
that nothing had happened. Officer Bolin testified that the female’s response did
not make sense to him at the time because he could see that the female had a
scratch in the area of her right tricep and had a scratch on her cheek. Officer
Bolin asked the female, who identified herself as Chambers, if she had been hit,
and she said no. As Officer Bolin continued to talk with Chambers, she said that
4 Officer Orozco testified that it is common for the complainant in a domestic-violence incident to say that no assault had occurred.
5 she and her boyfriend—she then clarified that he was her ex-boyfriend—had
gotten into an argument or an altercation but that nothing had happened.
Chambers later alluded to the fact that her ex-boyfriend had “pulled” her and that
she had possibly received one of the scratches as a result. Officer Bolin testified
that he was in contact with Officer Orozco and informed him that Chambers had
scratches that appeared to be fresh and that appeared to be from an assault.
Officer Bolin testified that Chambers’s injuries were consistent with an assault
causing bodily injury.
During Moore’s case in chief, he re-called Chambers to the stand. She
said that she never told Officer Bolin that Moore had pulled her, that she did not
refer to Moore as her ex-boyfriend, and that she was not crying when Officer
Bolin approached her. Chambers testified that the scratches were caused by
having rough sex with Moore before they went to the grocery store and that the
marks on her legs were caused by leaning against a tree while she and Moore
were discussing their finances. Chambers testified that any reference she may
have made regarding an altercation was related to her discussion with Moore
about how she did not want to carry groceries back home from the store.
Chambers testified that once the officer stopped her, she knew she was going to
jail due to an outstanding warrant, and she was upset because she did not want
to miss work. Chambers testified that she did not know why the 911 callers had
assumed that she was being assaulted but said that Moore becomes animated
6 and uses hand motions when he talks. Chambers reiterated that Moore never
grabbed or pulled her and that he never dragged her.
After hearing the above evidence, the jury found Moore guilty of assault as
charged in the information and assessed his punishment at 365 days in jail. See
Tex. Penal Code Ann. § 12.21 (West 2011). The jury also found that Moore and
the victim were family members or members of the same household at the time
of the offense and that Moore had never been convicted of a felony; the jury
recommended that the sentence be suspended and that Moore be placed on
community supervision. The trial court sentenced Moore in accordance with the
jury’s recommendation, suspended imposition of the sentence, and placed Moore
on community supervision for twenty-four months. Moore perfected this appeal.
III. TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ADMITTING THE RECORDING OF THE 911 CALL
In his first issue, Moore argues that the trial court abused its discretion by
admitting the recording of the 911 call as State’s Exhibit 1 through the 911
dispatcher because it was not properly authenticated. Moore contends that the
911 dispatcher lacked knowledge as to the manner of operation and the
recording of the 911 call and was unable to provide any evidence that the call
was not modified or otherwise tampered with, despite that “the ‘call’ was not a
single file” but had been made into five files and that there was no “proper basis
or explanation for the missing portions.”
7 We review a trial court’s decision to admit evidence under an abuse-of-
discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.
2000); Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App.), cert. denied,
522 U.S. 917 (1997). As long as the trial court’s ruling falls within the zone of
reasonable disagreement, we will affirm the trial court’s decision. Martinez v.
State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 2966
(2011); Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Texas Rule of Evidence 901 governs the authentication of electronic
recordings. Tex. R. Evid. 901; Leos v. State, 883 S.W.2d 209, 211–12 (Tex.
Crim. App. 1994). The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims. Tex. R. Evid.
901(a). Rule 901(b) provides a nonexclusive list of methods for authenticating
evidence. Tex. R. Evid. 901(b). Relevant to the present case are the following
provisions of rule 901(b):
(1) Testimony of Witness With Knowledge. Testimony that an item is what it is claimed to be.
....
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
(5) Opinion About a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic
8 transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
Tex. R. Evid. 901(b)(1), (4), (5). The preliminary question for the trial court to
decide is whether the proponent of the evidence has supplied facts that are
sufficient to support a reasonable jury determination that the evidence proffered
is authentic. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).
During the trial, Dooley, a 911 dispatcher with the Denton Police
Department, explained that on April 26, 2014, she was assigned an off channel
so that she had direct communication with the officers that were responding to
the assault in progress. Dooley listened to State’s Exhibit 1, which contained five
audio files; marked her initials on it; and testified that it was a fair and accurate
recording of the conversation between her and the 911 caller. Dooley testified
that the City of Denton has equipment capable of making recordings, that it
makes fair and accurate recordings of the 911 calls that come in, and that the
equipment was working on the date in question. Dooley testified that to the best
of her knowledge, no additions or deletions were made to the substance of the
911 call. When the defense took Dooley on voir dire, she explained that the
recording of the 911 call was separated into five audio files in order to omit the
radio traffic recorded during the call. Dooley testified that even though the call
was split into five parts to omit the radio traffic, taken together, the five parts were
fair and accurate recordings of the entire conversation that took place between
her and the 911 caller.
9 As set forth above, Dooley’s testimony demonstrates that the five audio
files comprising State’s Exhibit 1 merely had the background noise from the radio
traffic removed and that they accurately portrayed the substance of the original
911 call, to which Dooley was a witness with knowledge. See Tex. R. Evid.
901(b)(1); see also Tienda, 358 S.W.3d at 638. Additionally, because Dooley
took the call, she was qualified to identify the voices on State’s Exhibit 1 as those
of the caller and herself. See Tex. R. Evid. 901(b)(5). Moreover, the content of
the recording and the circumstances under which it was made—a 911 call from a
witness reporting an assault in progress—support its authenticity. See Tex. R.
Evid. 901(b)(4). State’s Exhibit 1 was thus properly authenticated under rule 901
by the 911 dispatcher because her testimony demonstrated that the exhibit was
what the State claimed it to be. See Tex. R. Evid. 901(a). Although Moore
points to the fact that Dooley did not know how the recording equipment worked,
such knowledge is not required to authenticate a recording of a 911 call. See,
e.g., Chatman v. State, No. 11-10-00044-CR, 2011 WL 3860437, at *4 (Tex.
App.—Eastland Aug. 31, 2011, no pet.) (mem. op., not designated for
publication) (“Inasmuch as the evidence is sufficient to show that the recordings
are what the State represents them to be, we hold there is no requirement for
testimony from a representative of the company that operates the system for the
county involved.”).
We therefore hold that the trial court did not abuse its discretion by
admitting State’s Exhibit 1. See Tienda, 358 S.W.3d at 638 (“If the trial court’s
10 ruling that a jury could reasonably find proffered evidence authentic is at least
‘within the zone of reasonable disagreement,’ a reviewing court should not
interfere.”); Angleton v. State, 971 S.W.2d 65, 67–69 (Tex. Crim. App. 1998)
(holding that enhanced copy of audio tape, in which background noise had been
reduced to make voices more audible, was properly authenticated by officer who
had listened to both original and enhanced versions of the tape and testified that
enhanced tape was accurate copy of relevant contents of original). We overrule
Moore’s first issue.
IV. TRIAL COURT DID NOT ERR BY DENYING MOORE’S MOTION FOR DIRECTED VERDICT
In his second issue, Moore argues that the trial court erred by denying his
motion for directed verdict. Moore argues that there was no evidence identifying
him as the “black male” from the 911 call who was alleged to have committed the
assault of the unidentified “black female.”
The standard of review applicable to a motion for directed verdict is the
same used under a sufficiency review. McDuff v. State, 939 S.W.2d 607, 613
(Tex. Crim. App.), cert. denied, 522 U.S. 844 (1997); Havard v. State, 800
S.W.2d 195, 199 (Tex. Crim. App. 1989). In our due-process review of the
sufficiency of the evidence to support a conviction, we view all of the evidence in
the light most favorable to the verdict to determine whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
11 doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
When performing an evidentiary sufficiency review, we determine whether
the necessary inferences are reasonable based upon the cumulative force of the
evidence when viewed in the light most favorable to the verdict. Sorrells v. State,
343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see Temple v. State, 390 S.W.3d
341, 360 (Tex. Crim. App. 2013). We must presume that the factfinder resolved
any conflicting inferences in favor of the verdict and defer to that resolution.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
Circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor. Dobbs, 434 S.W.3d at 170; Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007). Moreover, we must consider all the evidence admitted at
trial—even improperly admitted evidence, including hearsay—when performing a
sufficiency review. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Poindexter v. State, 153 S.W.3d 402, 406–09 (Tex. Crim. App. 2005).
A person commits the offense of assault if the person intentionally,
knowingly, or recklessly causes bodily injury to another. See Tex. Penal Code
Ann. § 22.01(a). Identification of the defendant as the person who committed the
offense charged is an element of the offense that the State must prove beyond a
reasonable doubt. See Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App.
1984); McCullen v. State, 372 S.W.2d 693, 695 (Tex. Crim. App. 1963).
12 Because Moore challenges the sufficiency of the evidence only as it relates to
identity, we will focus our analysis on the evidence linking him to the assault.
Here, the jury heard the audio recording of the initial 911 call, during which
the caller described the action taking place in front of her:
At 2219 North Elm Street, there’s a man beating a woman in the middle of the street. . . . At the corner of Taliaferro. . . . It’s a black man and a black woman, and he’s beating the crap out of her in the street. . . . The black male has a blue shirt, blue jeans, and short hair. . . . The female has a purple shirt and orange underneath it and a pair of blue jeans on with [] sandals. . . . They’re standing at the corner, and he’s yanking on her, pulling her. She doesn’t want to go with him. . . . He’s slapping her around and hitting her with his [closed] fist. He’s yanking on her, grabbing her by the neck. . . . He’s grabbing at her arms, yanking her [and] trying to get control over her. . . . Well, she’s standing in front of our yard, and he’s yelling at her. He’s trying to cross the street over to those [] rundown apartments, but he’s [] stopped. Now he’s just talking at her. He’s trying to yank her across the street. . . . He’s just yelling at her right now. It’s getting more and more intense. Okay, now he’s grabbing her in the face. Okay, he slapped her in the face. . . . Okay, he’s just yelling at her and yelling at her, and she’s just backing up against [] and hanging onto a pole—the stop sign. She’s hanging onto the pole because she doesn’t want to be drug [sic] away. He’s screaming at her and yelling at her. She’s still hanging onto the pole. . . . The man saw the police officer and took off. . . . He’s heading toward the Cobblestone Apartments across the street. . . . The police officer’s got him. . . . He’s got the male. . . . [The police officer’s] talking to him.[5]
Additionally, Wimberley, a passerby, also witnessed the altercation and
called 911. She testified at trial, and the jury heard her 911 call, which was
admitted into evidence and included the following:
5 The preceding transcription of State’s Exhibit 1, as well as the transcription of State’s Exhibit 2 infra, was performed by the undersigned author after listening to the exhibits multiple times.
13 We’re in a vehicle, and we just passed two individuals—a man and a woman, both black. And the man was . . . very . . . argumentative with the woman, and she was . . . crying. It just looked like it might need some attention. They were standing on the Taliaferro corner of Elm. . . . He was screaming and arguing, and she’s standing there crying. And they’re just there on the street corner. . . .
The 911 dispatcher asked Wimberley if the man was wearing a blue shirt and if
the woman was wearing a purple shirt, and she confirmed these details.
When the police arrived, they were able to identify the individuals involved
in the altercation based on the 911 callers’ descriptions and based on the sparse
pedestrian traffic in the area; Moore’s physical appearance and emotional state
matched the descriptions given by the 911 callers. Moreover, the initial 911
caller stayed on the phone with the 911 dispatcher until police arrived and
confirmed that the police had stopped the same black man whom she had
observed involved in the altercation. Furthermore, Chambers ultimately admitted
that Moore—not an unidentified individual—had pulled her.
Viewing all of the evidence in the light most favorable to the verdict, a
rational trier of fact could have found beyond a reasonable doubt that Moore was
the black male described by the two 911 callers who saw Moore intentionally,
knowingly, or recklessly cause bodily injury to Chambers. See Tex. Penal Code
Ann. § 22.01(a); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (setting forth
sufficiency standard); Orellana v. State, 381 S.W.3d 645, 653–54 (Tex. App.—
San Antonio 2012, pet. ref’d) (holding circumstantial evidence sufficient to show
that appellant was the perpetrator of the offense); Nicholson v. State, 162 S.W.3d
14 389, 396–97 (Tex. App.—Beaumont 2005, pet. ref’d) (same). Accordingly, we
hold that the evidence is sufficient to support Moore’s conviction for Class A
misdemeanor assault and that the trial court therefore did not err by denying
Moore’s motion for directed verdict. We overrule Moore’s second issue.
V. CONCLUSION
Having overruled Moore’s two issues, we affirm the trial court’s judgment.
/s/ Sue Walker SUE WALKER JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: January 21, 2016