Freddy Adan Hurst v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00113-CR

FREDDY ADAN HURST, Appellant v.

THE STATE OF TEXAS, Appellee

From the 40th District Court Ellis County, Texas Trial Court No. 36174CR

MEMORANDUM OPINION

Appellant, Freddy Adan Hurst, challenges his conviction for tampering with

physical evidence, a third-degree felony. See TEX. PENAL CODE ANN. § 37.09(a), (c) (West

Supp. 2012). In one issue, Hurst argues that the “trial court erred in permitting the State

to introduce computer[-]enhanced images into evidence in violation of the Texas Rules

of Evidence.” We affirm. I. BACKGROUND

During the evening hours of July 13, 2011, Sergeant Mike Lewis of the

Waxahachie Police Department received a tip about a possible drug purchase at a

particular house in the 400 block of Lakepark in Waxahachie, Texas. Acting on the tip,

Sergeant Lewis patrolled the area by the house to see if he could observe anything out

of the ordinary.

At approximately 11:19 p.m., Sergeant Lewis observed a vehicle that was parked

illegally in front of the house described in the tip. The vehicle’s headlights blinded

Sergeant Lewis as he drove down the street, but he did observe a female exit the

vehicle. Sergeant Lewis then turned his vehicle around to make a traffic stop. At this

time, the vehicle, driven by Hurst, pulled away from the house. Sergeant Lewis

advised dispatch, turned on his overhead lights, and attempted to effectuate a traffic

stop. Sergeant Lewis noticed that Hurst “[t]ook a little longer than most people do to

stop.” As Hurst was stopping his vehicle, Sergeant Lewis “noticed the driver make a

furtive movement, which was leaning far down toward the right side of the

floorboard.” Sergeant Lewis “then saw a hand come out the right front window,

probably about to the wrist. It looked what looked like fingers shaking, and then I saw

something fall from his hand and hit the ground.” Sergeant Lewis notified other

officers about what he saw.

After Hurst stopped his vehicle, Sergeant Lewis approached the passenger-side

window to investigate what had been thrown from the window. Sergeant Lewis

observed that Hurst was the only occupant in the vehicle. Later, backup arrived and

Hurst v. State Page 2 located five to seven small, clear baggies in a clump at the location where Sergeant

Lewis had observed that they were dropped. One of the baggies contained a

crystallized substance that Sergeant Lewis believed to be methamphetamine. Hurst

was subsequently arrested. Tests revealed that the one baggie contained 0.07 grams of

methamphetamine.

At trial, the dash-cam video from Sergeant Lewis’s vehicle was admitted into

evidence without objection. In addition, the State introduced a PowerPoint

presentation that was created from still photographs taken from the dash-cam video.

The photographs purportedly were still frames from the dash-cam video that have

boxes on portions of the photographs depicting the offense. The inclusion of the boxes

was designed to help the jury focus their attention on the act constituting the offense.

Hurst objected to the photographs, arguing that:

It’s manufactured evidence. Mr. Jackson’s testimony, it’s been edited, it’s been enhanced, it’s been altered by adding boxes. It’s a violation of the best evidence rule. And we, therefore, think should not be admitted into evidence or shown to the jury. It’s not what the officer brought us. It’s been added to so we object.

The trial court overruled Hurst’s objection, and the photographs were admitted into

evidence.

At the conclusion of the evidence, the jury found Hurst guilty of the charged

offense and assessed punishment at five years’ imprisonment in the Institutional

Division of the Texas Department of Criminal Justice.1 This appeal followed.

1 Hurst was also convicted of unlawfully possessing a controlled substance, for which he received a five-year sentence. That case is not the subject of this appeal.

Hurst v. State Page 3 II. ADMISSION OF EVIDENCE

In his sole issue on appeal, Hurst contends that the trial court abused its

discretion by admitting the computer-enhanced photographs because the photographs

were untrustworthy and subject to tampering and modification.

A. Applicable Law

We review a trial court’s admission of photographs into evidence under an

abuse-of-discretion standard. Neelys v. State, 374 S.W.3d 553, 563 (Tex. App.—Houston

[14th Dist.] 2012, pet. ref’d) (citing Penry v. State, 903 S.W.2d 715, 751 (Tex. Crim. App.

1995)); see Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997) (“The

admissibility of photographs over a challenge is within the discretion of the trial

judge.”). We will not reverse the trial court’s ruling unless it falls outside the zone of

reasonable disagreement. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App.

2003); see also Fields v. State, No. 01-07-00856-CR, 2009 Tex. App. LEXIS 1932, at *11 (Tex.

App.—Houston [1st Dist.] Mar. 19, 2009, pet. ref’d) (mem. op., not designated for

publication).

Hurst v. State Page 4 B. Discussion

In his brief, Hurst complains that it “was unfair to admit the duplicate in lieu of

the original since defense counsel raised a question as to the authenticity of the original

when he questioned the manufactured or altered modified photo evidence which

finally appeared into [sic] the Power[]Point presentation.” However, as noted above,

Sergeant Lewis’s dash-cam video was admitted into evidence without objection.

Furthermore, Sergeant Lewis testified that the dash-cam video was a true and accurate

depiction of what he saw that night. See TEX. R. EVID. 901(a)-(b)(1). Therefore, based on

the foregoing, we do not find this argument to be persuasive.2

Hurst also argues that the photographs were inadmissible because they were not

properly authenticated. Texas Rule of Evidence 901 provides that: “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.; see Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim.

App. 2012) (“The preliminary question for the trial court to decide is simply whether

the proponent of the evidence has supplied facts that are sufficient to support a

reasonable jury determination that the evidence he has proffered is authentic.”). Rule

2 Moreover, we do not believe that the Best Evidence Rule applies in this case because the best evidence, the dash-cam video from Sergeant Lewis’s vehicle, was admitted into evidence without objection. See TEX. R. EVID. 1002 (providing that the original writing, recording, or photograph is required to prove the content of the writing, recording, or photograph). The complained-of photographs merely supplemented, but did not alter, the substance of the dash-cam video. Therefore, because the photographs were not tendered for admission into evidence in lieu of the dash-cam video, we do not believe that Texas Rules of Evidence 1002 and 1003 apply in this case. See id.; see also id. at R. 1003 (“A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.”).

Hurst v. State Page 5 901 creates a gatekeeping function that can be cleared by circumstantial evidence. See

Campbell v. State, 382 S.W.3d 545, 549-50 (Tex. App.—Austin 2012, no pet.). The Texas

Court of Criminal Appeals has stated that:

“Before being admitted, photographic evidence must ordinarily be shown, either by direct proof or by admission to be correct. However, the only identification or authentication required is that the offered evidence properly represent the person, object[,] or scene in question. This may be testified to not only by the photographer or a person photographed, but by any other witness who knows the facts, even though the witness did not take the photograph himself or see it taken.”

Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988) (quoting Williams v. State,

461 S.W.2d 614, 616 (Tex. Crim. App. 1970)); see Hughes v. State, 878 S.W.2d 142, 155

(Tex. Crim. App. 1992) (op. on reh’g); see also Gomez v. State, No. 08-10-00276-CR, 2012

Tex. App. LEXIS 1013, at *20 (Tex. App.—El Paso Feb. 8, 2012, no pet.) (mem. op., not

designated for publication).

Here, Darin Jackson, an employee of the Ellis County District Attorney’s Office,

testified that he created the PowerPoint presentation using still frames from the dash-

cam video that was admitted without objection. Jackson acknowledged that he added

boxes to the still frames to focus the jury’s attention on what Hurst had dropped out of

the vehicle. Other than inserting the boxes, Jackson denied making any further

alterations or manipulations to the still frames. In addition, Sergeant Lewis testified

that the photographs contained in the PowerPoint presentation created by Jackson

accurately represented what he personally viewed that night. As such, we reject

Hurst’s authentication argument. See Hughes, 878 S.W.2d at 155; Huffman, 746 S.W.2d at

222; see also Gomez, 2012 Tex. App. LEXIS 1013, at *20.

Hurst v. State Page 6 Hurst also appears to argue that the photographs were inflammatory. We note

that Hurst did not make such an argument in the trial court. To preserve error, Texas

Rule of Appellate Procedure 33.1(a) requires the complaining party to make a specific

objection or complaint and obtain a ruling thereon before the trial court. See TEX. R.

APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Texas

courts have held that points of error on appeal must correspond or comport with

objections and arguments made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim.

App. 1999); see Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet.

ref’d). “Where a trial objection does not comport with the issue raised on appeal, the

appellant has preserved nothing for review.” Wright, 154 S.W.3d at 241; see Resendiz,

112 S.W.3d at 547. Because Hurst’s appellate argument does not comport with the

arguments made in the trial court, we cannot say that Hurst has preserved this

argument for review. See TEX. R. APP. P. 33.1(a)(1); see also Resendiz, 112 S.W.3d at 547;

Wilson, 71 S.W.3d at 349; Wright, 154 S.W.3d at 241.

And finally, even if we were to conclude that the trial court abused its discretion

in admitting the photographs into evidence, we note that the potential harm of the

complained-of evidence is defused by other properly-admitted evidence. See King v.

State, 953 S.W.2d 266, 273 (Tex. Crim. App. 1997). Therefore, because the dash-cam

video was admitted into evidence without objection, any harm associated with the

admission of the photographs would be harmless. See TEX. R. APP. P. 44.2; see also Lane

v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (“An error [if any] in the admission

of evidence is cured where the same evidence comes in elsewhere without objection.”);

Hurst v. State Page 7 King, 953 S.W.2d at 273. Based on the foregoing, we overrule Hurst’s sole issue on

appeal.

III. CONCLUSION

Having overruled Hurst’s sole issue on appeal, we affirm the judgment of the

trial court.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed October 3, 2013 Do not publish [CR25]

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