ACCEPTED 05-14-01369-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 6/16/2015 10:25:20 AM LISA MATZ CLERK
No. 05-14-01369-CR
IN THE COURT OF APPEALS FILED IN FOR THE FIFTH DISTRICT OF TEXAS 5th COURT OF APPEALS DALLAS, TEXAS AT DALLAS 6/16/2015 10:25:20 AM ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ LISA MATZ Clerk JOHN BRANDON BURKS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
On Appeal from the Criminal District Court Number Five Hon. Carter Thompson, Judge Dallas County, Texas In Cause No. F13-21294-L ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
STATE’S RESPONSE BRIEF ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Counsel of Record:
Susan Hawk Douglas R. Gladden Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 24076404 Frank Crowley Courts Building 133 N. Riverfront Boulevard, LB-19 Dallas, Texas 75207-4399 (214) 653-3600 douglas.gladden@dallascounty.org
Attorneys for the State of Texas
The State requests oral argument only if Appellant argues. TABLE OF CONTENTS TABLE OF CONTENTS ......................................................................................................i INDEX OF AUTHORITIES ...............................................................................................ii STATEMENT OF THE CASE .......................................................................................... 1 ISSUE PRESENTED ........................................................................................................... 1 STATEMENT OF FACTS .................................................................................................. 2 SUMMARY OF THE ARGUMENT ................................................................................. 5 ARGUMENT ......................................................................................................................... 5 Response to Appellant’s Sole Issue ................................................................................. 5 Appellant has not preserved his authentication complaint, but the evidence was nevertheless properly authenticated. 1. Appellant’s issue was not preserved because the complaint on appeal does not comport with the objection at trial. .......................................................... 8 2. Even if Appellant had preserved his complaint on appeal, the trial court did not abuse its discretion in admitting the evidence because it was properly authenticated. ............................................................................................... 9 a. A trial court’s decision regarding the admissibility of evidence must be affirmed if it lies within the zone of reasonable disagreement. ............ 9 b. Authentication only requires a threshold showing that the evidence is what its proponent purports it to be. ...................................................... 10 c. The State made the required threshold showing that Exhibit 20 was what it was purported to be: a breath-test record with Appellant’s identifying information.................................................................................. 10 PRAYER ............................................................................................................................... 12 CERTIFICATE OF COMPLIANCE .............................................................................. 12 CERTIFICATE OF SERVICE ......................................................................................... 13
i INDEX OF AUTHORITIES TEXAS CASES Guevara v. State, 97 S.W.3d 579 (Tex. Crim. App. 2003) .................................................................... 8 Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828 (2000) .................................................................................................................... 8 Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) .................................................................. 9 Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003) .................................................................. 9 Rezac v. State, 782 S.W.2d 869 (Tex. Crim. App. 1986) .................................................................. 9 Stevenson v. State, 920 S.W.2d 342 (Tex. App.—Dallas 1996, no pet.) ............................................. 11 Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) ................................................................ 10 Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) .................................................................. 9 Zimmerman v. State, 860 S.W.2d 89 (Tex. Crim. App.), judgment vacated on other grounds, 510 U.S. 938 (1993) ....................................................................................... 9
STATUTES Tex. Code Crim. Proc. art. 42.12 (West Supp. 2014) ......................................................... 1 Tex. Penal Code § 49.01 (West 2011) .................................................................................. 7 Tex. Transp. Code § 550.021 (West 2011) .......................................................................... 1 Tex. Transp. Code § 724.016 (West Supp. 2014) ............................................................... 6
ii RULES Tex. R. App. P. 25.2 (West Supp. 2014) .............................................................................. 1 Tex. R. App. P. 33.1 (West 2003) ......................................................................................... 8 Tex. R. Evid. 803 (West 2003) ............................................................................................ 11 Tex. R. Evid. 901 (West 2003) ............................................................................................ 10
REGULATIONS 37 Tex. Admin. Code § 19.1, et. seq. (Texas Breath Alcohol Testing Regulations) ............................................................................................................. 6, 8
OTHER AUTHORITIES 2 Steven Goode et al., Texas Practice Series: Guide to the Texas Rules of Evidence § 901.1 (3d ed. 2002) .................................................................................. 10
iii TO THE HONORABLE COURT OF APPEALS:
The State of Texas submits this brief in response to the brief of Appellant,
John Brandon Burks.
STATEMENT OF THE CASE Appellant was indicted on December 18, 2013, for failure to stop and render
aid in an accident involving serious bodily injury, a third-degree felony.1 On October
17, 2014, he pleaded guilty without a recommendation from the State as to
punshment.2 After a hearing, the court assessed punishment at eight years’
confinement.3 This appeal followed.4
ISSUE PRESENTED Authentication of Evidence. Authentication requires a showing that evidence is what it is purported to be. In this case, the trial court admitted a breath-test report after a technical supervisor testified that it was an exact copy of the report in her records. Did the trial court abuse its discretion in admitting this evidence?
1 Clerk’s Record (C.R.) at 12. See Tex. Transp. Code § 550.021(c)(1)(B) (West 2011). 2 C.R. at 53–57; Reporter’s Record volume (RR) 1:7–8. 3 C.R. at 53–54; RR 1:111. 4 Appellant filed a notice of appeal the same day he was sentenced. C.R. at 61. About five and a half months later, on April 3, 2015, Appellant filed a Motion for Imposition of Shock Probation, which the court granted the same day. Supplemental Clerk’s Record (C.R.Supp.) at 6–9; see Tex. Code Crim. Proc. art. 42.12, § 6 (West Supp. 2014). The court suspended Appellant’s eight-year sentence and placed him on community supervision for five years. C.R.Supp. at 9–10. Both the new judgment and the court’s docket sheet reflect that this was done with the agreement of the State. C.R.Supp. at 4, 10. Even though this occurred about four months after the record was filed in this Court, it appears jurisdictionally proper. See Tex. R. App. P. 25.2(g) (West Supp. 2014) (proceedings in trial court are suspended upon filing of record ―except as provided otherwise by law‖). Appellant does not raise any issues from these later proceedings and—because the record reflects the State agreed to them in the trial court—the State cannot find any problems that merit this Court’s attention on appeal.
1 STATEMENT OF FACTS The Crash
On December 28, 2010, Appellant drove his truck across the center line of
south Main Street in Duncanville and collided head-on with a Toyota Camry driven
by Jamie Stanley.5 Stanley, who was 34 weeks pregnant, saw the truck but did not have
enough time to take enough evasive action to avoid the collision.6 She got her car
door open and cried for help.7 A man came up and used Stanley’s cell phone to call
for help and stayed with her.8
Appellant fled.9 He had been drinking.10
Duncanville Police Officer Brent Hand was dispatched to the crash scene.11 He
found Appellant’s truck abandoned so he moved on to Stanley’s car, where he kept
her calm until the paramedics arrived.12 After Stanley was taken to the hospital, Hand
tried to determine who had been driving the truck.13 He discovered it was registered
to Appellant and he found Appellant’s passport inside.14
5 RR1:12, 16–18, 53–56. 6 RR1:54–56. 7 RR1:57. 8 RR1:57. 9 RR1:57, 83–84. 10 RR1:83–84. 11 RR1:11–12. 12 RR1:14. 13 RR1:18. 14 RR1:15–16, 18.
2 Appellant returned to the scene with a friend.15 Appellant identified himself to
Hand as ―Chris Johnson,‖ but Hand recognized him from his passport photo. 16 Hand
gave Appellant several chances to give his real name.17 Hand smelled alcohol on
Appellant, so he conducted a battery of Standardized Field Sobriety Tests (SFSTs).18
Hand arrested Appellant for public intoxication and failure to ID.19
The DWI Appellant bonded out of jail the next morning and continued to drink and
drive while on bond.20 On January 20, 2011—just three weeks later—he was arrested
in Dallas for DWI and possession of marijuana.21 Dallas Police Officer Shane
Johnson stopped Appellant for driving the wrong way on Greenville Avenue.22
Johnson got Appellant out of the car and, after a battery of SFSTs, arrested him for
DWI.23 During the traffic stop, Appellant told Johnson that he had had two mixed
drinks that evening.24 Appellant submitted to a breath test, which showed alcohol
concentrations of .160 and .144.25
15 RR1:85. 16 RR1:20. 17 RR1:20. 18 RR1:20–21. 19 RR1:21. 20 RR1:96. 21 RR1:25, 30, 88, 96. 22 RR1:24–26. 23 RR1:27–30. 24 RR1:30–31. 25 RR1:36–37, 39, 96–97; State’s Exhibit (SE) 20.
3 The Indictment and Bond Violations
Appellant was finally indicted for failing to stop and render aid in the 2010
crash on December 18, 2013.26 Before that, he had given a statement to the
Duncanville Police Department in which he claimed he had not been driving—that he
had been ―too drunk to drive‖ and had given his keys to someone else.27 He repeated
this story to his insurance company.28
Appellant was arrested on January 29, 2014.29 An interlock device was put on
his vehicle as a condition of bond.30 On April 18 and May 3, Appellant’s interlock
device registered positive tests for alcohol.31 Appellant claimed the first positive test
was due to his use of mouthwash.32 He claimed the second positive test occurred
when a mechanic blew into the device to work on the car.33 He sent the court a letter,
purportedly from the mechanic, that appeared to confirm this story.34
At the punishment hearing Appellant admitted that he signed the letter, after
the State presented evidence that it was in his own handwriting.35 He insisted the
mechanic was a real person, but he did not call the mechanic to testify.36
26 C.R. at 12. 27 RR1:94. 28 RR1:94. 29 C.R. at 15. 30 C.R. at 22; RR1:97. 31 RR1:43–46; SE 12 – 13. 32 RR1:50, 97; Defense Exhibit (DE) 1. 33 RR1:46–47, 98; SE 22. 34 RR1:46–47, 98; SE 22. 35 RR1:46–47, 98; SE 21–22.
4 SUMMARY OF THE ARGUMENT Appellant has not preserved his complaint on appeal because it does not
comport with his objection at trial. And objection to improper predicate does not
preserve an appellate complaint about authentication. Even if the authentication
complaint were preserved, the court did not abuse its discretion in admitting the copy
of the breath-test record because the testimony showed that it was exactly what it was
purported to be.
ARGUMENT Response to Appellant’s Sole Issue
Appellant has not preserved his authentication complaint, but the evidence was nevertheless properly authenticated.
Appellant argues in his sole issue on appeal that the court abused its discretion
in admitting State’s Exhibit 20 because it was not properly authenticated. Appellant
did not preserve his complaint for review.
Additional Facts
State’s Exhibit 20 is the report generated by the Intoxilyzer 5000 instrument
after Appellant submitted to a breath test on January 20, 2011.37 It identifies the
subject of the test as Appellant based on his name and date of birth.38 It identifies the
36 RR1:98–99. 37 RR1:36; SE 20. 38 RR1:38–39; SE 20.
5 operator of the instrument as Officer Johnson based on his name and operator
certificate number.39 It lists the date and time of the breath test.40 It identifies the test
by a unique test record number.41
At the punishment hearing, the State introduced Exhibit 20 solely through the
testimony of Lori Fuller, a technical supervisor at the Southwestern Institute of
Forensic Sciences (SWIFs).42 In her capacity as technical supervisor, Fuller maintains
the integrity of the Texas Breath Alcohol Program in Dallas, Collin, and Denton
Counties.43 Fuller performs maintenance on the instruments in her area.44 She
maintains care, custody, and control over at least one original document printed by
the instrument following a breath test.45
Fuller testified that Exhibit 20 is an exact copy of the January 20, 2011 breath-
test report from Appellant’s breath test that she kept in the ordinary course of
business.46 Fuller confirmed that she was not the operator who performed the breath
test on Appellant, nor could she identify Appellant as ―the person‖ who provided the
39 RR1:39; SE 20. 40 RR1:36; SE 20. 41 RR1:37; SE 20. 42 RR1:35. 43 RR1:35. See Tex. Transp. Code § 724.016 (West Supp. 2014); 37 Tex. Admin. Code § 19.1, et. seq. (Texas Breath Alcohol Testing Regulations). 44 RR1:35. 45 RR1:35–36. 46 RR1:36–37.
6 specimen.47 She testified that Officer Johnson was the operator who performed the
test.48 Johnson had testified before Fuller but did not talk about the breath test.49
Appellant objected to the admission of Exhibit 20:
DEFENSE: ... Judge, I’m going to object to her, improper predicate, with regards to getting this document into evidence. THE COURT: State. PROSECUTOR: Your Honor, it goes to the weight not the admissibility. She has testified this is a business record kept in the ordinary course of business. Defense has stipulated to the entire Court’s file, which has the Defendant’s name and date of birth. We ask that this document be admitted as a business record, in relation to identifying information of the Defendant. THE COURT: Objection overruled. It will be admitted.50
Fuller then explained that, as part of the breath test, Appellant provided two
specimens.51 She testified that Exhibit 20 showed both specimens revealed alcohol
concentrations well above the ―legal limit‖ of 0.08.52 Fuller confirmed that she was
―not here to say that‖ Appellant was driving while intoxicated; rather, she was ―here
only to authenticate‖ Exhibit 20.53 On cross-examination, Fuller testified that she
knew Officer Johnson performed the breath test correctly, because ―we have a valid
47 RR1:37. 48 RR1:37–38. 49 RR1:24–34. 50 RR1:38–39. 51 RR1:39. 52 RR1:39. See Tex. Penal Code § 49.01(2)(B) (West 2011) (defining ―intoxicated‖ as, among other things, ―having an alcohol concentration of 0.08 or more‖). 53 RR1:40.
7 test record.‖54 She conceded, however, that she did not have personal knowledge
whether Johnson complied with the 15-minute waiting period.55
1. Appellant’s issue was not preserved because the complaint on appeal does not comport with the objection at trial. On appeal, Appellant complains that the trial court erred in admitting Exhibit
20 because it was not properly authenticated.56 He relies exclusively on Rules 901 and
902 of the Texas Rules of Evidence, which are the requirements for authentication
and the methods of self-authentication of evidence.57 At trial, however, Appellant only
objected to Exhibit 20 out the grounds of failure to lay a proper predicate.58
To preserve a complaint for appellate review, the record must show the
complaint was made to the trial court by a timely objection that stated the grounds for
the ruling sought with sufficient specificity to make the trial court aware of the
complaint, and the trial court ruled on the objection.59 The objection at trial must
comport with the complaint raised on appeal.60 A trial objection on the grounds of
54 RR1:40. 55 RR1:40–41. See 37 Tex. Admin. Code § 19.3(a)(1). 56 Appellant’s Brief at 2, 4, 6–10. 57 Appellant’s Brief at 3, 7–10. 58 RR1:38. 59 Tex. R. App. P. 33.1(a) (West 2003). 60 Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828 (2000).
8 failure to lay a proper predicate does not comport with—and therefore does not
preserve—a complaint on appeal that an exhibit was not authenticated.61
Because Appellant only objected to the ―improper predicate‖ at trial, he has not
preserved his complaint on appeal that Exhibit 20 was not authenticated. This court
should overrule his sole issue and affirm the judgment.
2. Even if Appellant had preserved his complaint on appeal, the trial court did not abuse its discretion in admitting the evidence because it was properly authenticated. Nevertheless, Appellant’s argument that Exhibit 20 was not properly
authenticated fails even if he had preserved his complaint.
a. A trial court’s decision regarding the admissibility of evidence must be affirmed if it lies within the zone of reasonable disagreement. A trial court’s decision regarding the admissibility of evidence is reviewed for
an abuse of discretion.62 A trial court abuses its discretion when its decision lies
outside the zone of reasonable disagreement.63 If the trial court’s decision is within the
zone of reasonable disagreement, a reviewing court must affirm the decision.64
61 Zimmerman v. State, 860 S.W.2d 89, 98 (Tex. Crim. App.), judgment vacated on other grounds, 510 U.S. 938 (1993); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1986). 62 Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). 63 Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). 64 Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
9 b. Authentication only requires a threshold showing that the evidence is what its proponent purports it to be. Authentication is a condition precedent to admissibility.65 The requirement of
authentication is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.66 Making this threshold showing is simply a
preliminary question of admissibility for the trial court based on relevance.67 Put
another way, the authentication requirement ―represent(s) a special aspect of
relevancy.‖68 The Texas Rules of Evidence provide a non-exhaustive list of
illustrations of the numerous ways evidence may be authenticated.69 Evidence may be
authenticated by direct testimony from a witness with knowledge that the matter is
what it is claimed to be.70
c. The State made the required threshold showing that Exhibit 20 was what it was purported to be: a breath-test record with Appellant’s identifying information. In this case, the State told the court it was offering Exhibit 20 ―as a business
record, in relation to identifying information of the Defendant.‖71 At the outset, it
must be noted that the business-records exception in Rule 803(6) is an exception to
65 Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). See Tex. R. Evid. 901(a) (West 2003). 66 Id. 67 Id. 68 2 Steven Goode et al., Texas Practice Series: Guide to the Texas Rules of Evidence § 901.1 (3d ed. 2002) (quoting advisory committee’s note to Fed. R. Evid. 901(a)). 69 Tex. R. Evid. 901(b) (West 2003). 70 Tex. R. Evid. 901(b)(1) (West 2003). 71 RR1:38–39.
10 the hearsay rule.72 While intoxilyzer maintenance records are hearsay that are nevertheless
admissible as business records, intoxilyzer results are not hearsay.73 Thus, it was not
technically correct to say the breath-test report was a business record.
Appellant does not challenge the prosecutor’s characterization of the
document, however. Instead, he argues it was not authenticated—that there was no
evidence it was what it was purported to be.
Exhibit 20 was purported to be a copy of a breath-test report that was: 1) made
on January 20, 2011, after Appellant submitted to a breath test; and 2) kept in Lori
Fuller’s records. Fuller testified that Exhibit 20 was an ―exact copy‖ of the report in
her records.74 She testified how those records are kept, that each report has a unique,
sequential record number, and that Exhibit 20 matched the number of the report in
her records.75
The report also contained Appellant’s name and date of birth, which were
confirmed in the court’s file that Appellant had previously stipulated to.76 The report
documented that date and time of the breath test which corresponded with the date
and time of Appellant’s arrest as recounted by Officer Johnson.77
72 Tex. R. Evid. 803(6) (West 2003). 73 Stevenson v. State, 920 S.W.2d 342, 344 (Tex. App.—Dallas 1996, no pet.). 74 RR1:36. 75 RR1:37. 76 RR1:7–8, 38. 77 RR1:25.
11 Thus, the evidence showed Exhibit 20 to be a copy of the breath-test report
from Appellant’s breath test the night he was arrested for DWI. The trial court did
not act outside the zone of reasonable disagreement in admitting the evidence because
it was exactly what it was purported to be. If this Court chooses to address
Appellant’s unpreserved argument, it should still overrule his sole issue.
PRAYER The State prays that this Honorable Court affirm the judgment in its entirety.
Respectfully submitted,
______________________ Susan Hawk Douglas R. Gladden Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 24076404 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 (214) 653-3600
CERTIFICATE OF COMPLIANCE I certify that this document contains 2,469 words, according to Microsoft Word 2010, exclusive of the sections excepted by Tex. R. App. P. 9.4(i)(1).
______________________ Douglas R. Gladden
12 CERTIFICATE OF SERVICE I certify that a true copy of the foregoing brief was served on Nanette Hendrickson, attorney for Appellant, at 133 N. Riverfront Blvd., LB–2, Dallas, Texas 75207-4399, on June 16, 2015, by electronic service to Nanette.Hendrickson@dallascounty.org
______________________ Douglas R. Gladden