James Malone v. State

• Court: Court of Appeals of Texas
• Decided: August 26, 2008
• Docket: 14-05-00033-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 26, 2008

Affirmed and Memorandum Opinion filed August 26, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00033-CR

JAMES MALONE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 45,743

M E M O R A N D U M  O P I N I O N  O N  R E M A N D

James Malone appeals his conviction for possession of a controlled substance with intent to deliver on grounds that (1) the evidence is legally insufficient to support his conviction; and (2) the trial court erroneously admitted a tape recording into evidence.  A jury found appellant guilty and sentenced him to 25 years in prison.  This Court sustained appellant=s first issue, reversed the judgment, and rendered a judgment of acquittal. Malone v. State, No. 14-05-00033-CR, 2006 WL 2164724 (Tex. App._Houston [14th Dist.] August 3, 2006, pet. granted) (op., not designated for publication).  Appellant=s first issue asserted that the evidence supporting his conviction was legally insufficient because the State failed to identify a voice on an audio recording made during the commission of the offense as that of appellant.  Consequently, appellant argued, there was insufficient evidence to link appellant to the alleged offense.  The Court of Criminal Appeals held that testimony from a covert‑agent witness regarding his controlled drug buy from appellant was adequately corroborated by other evidence that tended to connect appellant to the crime beyond appellant=s mere presence.  Malone v. State, 253 S.W.3d 253, 258-59 (Tex. Crim. App. 2008).  As directed by the Court of Criminal Appeals, we now address appellant=s remaining issue concerning the admission of a tape recording into evidence.

Background

Jay Grimes, a narcotics investigator with the Clute Police Department, used two informants, Jason Harris and Christopher Olachia, to make a controlled buy of crack cocaine from appellant. Investigator Grimes gave Harris and Olachia $1,000 cash and a tape recorder to capture the transaction. He thoroughly searched Harris and Olachia and their car to ensure the validity of the transaction, and instructed Harris and Olachia not to communicate with anyone other than appellant. After this, Investigator Grimes followed Harris and Olachia to appellant=s house in an unmarked patrol car watching them the entire way.

Investigator Grimes parked his unmarked police car next to appellant=s house so that he could watch Harris and Olachia.  Appellant was outside his house helping a woman maneuver her car out of his muddy driveway. With Investigator Grimes watching, Harris and Olachia joined appellant as he continued to help the woman free her car from the mud. When the woman=s car was freed, Harris and Olachia followed appellant inside the house. Olachia testified at trial that an unknown man entered and left the house while they were there. Olachia further testified that appellant prepared crack cocaine while they waited. After waiting for approximately 80 minutes, Harris and Olachia purchased $1,000 worth of crack cocaine and returned in their car to the police department followed by Investigator Grimes.

Once at the police station, Investigator Grimes searched Harris and Olachia and their car. The search revealed that Harris and Olachia no longer had the $1,000, and that they had several Acookies@ of crack. Investigator Grimes collected the crack they had purchased and retrieved the tape recording of the transaction.

At trial, the State played Olachia=s recording of the drug transaction for the jury with intermittent stops to allow Olachia to describe what was taking place and identify voices on the tape. The State offered Investigator Grimes=s testimony to corroborate the events described by Olachia on the recording.

Analysis

The sole remaining issue on remand focuses on the admissibility of the tape recording. Appellant argues that the trial court erred in admitting the recording because the tape recorder Astopped working for 10 to 15 minutes,@ thereby rendering the recording Aunreliable and untrustworthy.@  We review a trial court=s ruling on the admission of evidence for abuse of discretion.  Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).  A trial court abuses its discretion in the admission of evidence at trial when its action is arbitrary or unreasonable.  See Montgomery v.  State, 810 S.W.3d 372, 391 (Tex.  Crim.  App.  1990) (en banc).  Reversal is not warranted when the trial court=s decision falls within the zone of reasonable disagreement.  See Moses, 105 S.W.3d at 627.

The authentication requirement for admissibility Ais satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.@ Tex. R.  Evid. 901(a);  Angleton v. State, 971 S.W.2d 65, 67 (Tex.  Crim.  App.  1998) (en banc).  Rule 901(b) provides a non-exclusive list of methods for authenticating evidence.  See Tex.  R.  Evid.  901(b).  One of these methods allows for authentication by the testimony of a witness with knowledge that a matter is what it is claimed to be.  See Tex.  R.  Evid.  901(b)(1). 

Here, the State offered the audio tape as an accurate recording of the conversations and activities between appellant, Harris and Olachia.  Olachia testified that he operated the tape recorder to create the recording; that he had listened to the tape; and that the tape fairly and accurately depicted his conversations with appellant on September 22, 2003.  Taken on voir dire by appellant=s counsel, Olachia testifed that at some point during the meeting with appellant, the tape recorder stopped recording.  Olachia said that when he was in the restroom, he discovered that the recorder had turned itself off.  Olachia related that he turned the recorder back on, and rejoined appellant and Harris in the other room.

Appellant argues that this break in the recorded conversation renders the recording Aunreliable and untrustworthy.@ We reject this contention because intermittent gaps do not necessarily render a recording inadmissible when the record demonstrates reliability. 

This point is illustrated by Barfield v. State, No. 01-86-00932-CR, 1988 WL 7753 (Tex. App._Houston [1st Dist.] February 4, 1988, no pet.), in which the First Court of Appeals affirmed the trial court=s admission of a video tape recording of a prison inmate=s murder of another inmate.  At trial and again on appeal, the inmate objected to the admission of the tape as Aunreliable and untrustworthy@ because there were Anumerous unexplained gaps on the recording.@ Id.  at *4.  Before the admission of the videotape, the proffering witness (a corrections officer) testified that he was operating the camera in the prison that day. Id.  He further testified that it was his customary practice to occasionally turn off the camera for Amaybe a minute or so@ and that this explained the gaps on the tape.  Id.  Finally, the witness said that he turned on the camera, directing it towards the attack, after hearing a disturbance.  Id.  No further gaps occurred in the recording after that.  Id.  The First Court of Appeals held that the officer=s testimony sufficiently established that the recording was what it claimed to be, and that gaps in the recording did not defeat its authenticity. Id.  

The circumstances here parallel Barfield. Olachia=s testimony established the technique for and circumstances surrounding the proffered recording, and established reliability so as to justify admission of the tape.  Olachia established that the recording is what it claims to be, resulting in a proper authentication.  See Angleton v. State, 971 S.W.2d at 68-69 (audio tape was properly admitted having satisfied authentication requirements of Rule 901).  In light of this testimony, appellant has not established that the presence of a gap, standing alone, destroys authentication or precludes admission of the tape into evidence at trial. Appellant=s second issue is overruled.

Conclusion

We affirm the trial court=s judgment.

/s/      William J. Boyce

Justice

Judgment rendered and Memorandum Opinion filed August 26, 2008.

Panel consists of Justices Fowler, Guzman and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).