PD-0839-15 PD-0839-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/6/2015 9:13:17 PM Accepted 7/7/2015 4:34:58 PM NO. _______________ ABEL ACOSTA CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS ___________________________________________________
SALVADOR FERNANDEZ MIROLA, PETITIONER
VS.
THE STATE OF TEXAS ___________________________________________________
PETITION IN CAUSE NO. 5635 FROM THE 100TH JUDICIAL DISTRICT COURT OF CHILDRESS COUNTY, TEXAS AND THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS OF AMARILLO, TEXAS, NO. 07-14-00182-CR ___________________________________________________
PETITION FOR DISCRETIONARY REVIEW ___________________________________________________
Respectfully submitted,
BIRD, BIRD & RABE ATTORNEYS AT LAW P.O. BOX 1257 CHILDRESS, TEXAS 79201
BY: /s/ Dale A. Rabe, Jr. DALE A. RABE, JR., ATTORNEY FOR PETITIONER
TELEPHONE NO.: 940-937-2543 FACSIMILE NO.: 940-937-3431 July 7, 2015 E-MAIL: birdbirdrabe@gmail.com STATE BAR NO.: 24027638 IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL
TRIAL JUDGE: Hon. Stuart Messer P.O. Box 887 Clarendon, Texas 79226 806-874-0122 806-874-5146 (Facsimile)
APPELLANT: Mr. Salvador Mirola TDCJ #01924622 998 County Road AA Plainview, Texas 79072
TRIAL COUNSEL: Mr. Harley Caudle 1017 W. 10th Avenue Amarillo, Texas 79101 806-331-7785 806-331-7786 (Facsimile)
APPELLATE COUNSEL: Mr. Dale A. Rabe, Jr. 109 Avenue B, NE P.O. Box 1257 Childress, Texas 79201 940-937-2543 940-937-3431 (Facsimile) birdbirdrabe@gmail.com
APPELLEE: State of Texas
TRIAL COUNSEL/APPELLATE COUNSEL: Mr. Luke Inman 800 West Avenue, Box 1 Wellington, Texas 79095 806-447-0055 866-233-2738 (Facsimile) luke.inman@windstream.net
2 TABLE OF CONTENTS
Identity of the Judge, Parties, and Counsel 2
Table of Contents 3
Index of Authorities 4
Statement Regarding Oral Argument 5
Statement of the Case 6
Statement of Procedural History 6
Ground for Review: 7
IS THE PROPONENT OF EVIDENCE CONTAINED ON A DIGITAL VERSATILE DISC (DVD) OFFERED FOR ADMISSION REQUIRED TO VIEW THE CONTENTS OF THE DVD TO PROPERLY AUTHENTICATE OR IDENTIFY THE DVD PRIOR TO THE ADMISSION OF THE DVD INTO EVIDENCE?
Argument 7
Prayer for Relief 10
Appendix 12
Certificate of Compliance 13
Certification of Service 13
3 INDEX OF AUTHORITIES
STATUTES
TEX. R. EVID. 901(a) (Westlaw 2015) 8
4 NO. _______________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS ___________________________________________________
THE STATE OF TEXAS ___________________________________________________
PETITION IN CAUSE NO. 5635 FROM THE 100TH JUDICIAL DISTRICT COURT OF CHILDRESS COUNTY, TEXAS AND THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS OF AMARILLO, TEXAS, NO. 07-14-00182-CR ___________________________________________________
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS OF TEXAS:
STATEMENT REGARDING ORAL ARGUMENT
The ground for review herein involves
interpretation of evidentiary rules that apply to
novel forms of evidence. Oral argument may prove
helpful to the Court.
5 STATEMENT OF THE CASE
The Petitioner, Salvador Fernandez Mirola, was
charged by complaint and information with the
offense of possession of a controlled substance,
less than one gram, a state jail felony. Petitioner
pleaded guilty to the offense alleged in the
information and was afforded three years deferred
adjudication probation. The case proceeded on the
state’s motion to adjudicate guilt of the
Petitioner. The trial court granted the state’s
motion to adjudicate guilt and assessed punishment
at 24 months imprisonment in the Texas Department of
Criminal Justice – State Jail Division. The court
of appeals affirmed the judgment. This Petition
challenges that holding.
STATEMENT OF PROCEDURAL HISTORY
The court of appeals rendered its decision
affirming the judgment of the trial court on April
30, 2015.
6 Petitioner filed his Motion for Rehearing on
May 15, 2015.
Petitioner’s Motion for Rehearing was overruled
on June 5, 2015.
GROUND FOR REVIEW
IS THE PROPONENT OF EVIDENCE CONTAINED ON A DIGITAL VERSATILE DISC (DVD) OFFERED FOR ADMISSION REQUIRED TO VIEW THE DVD TO PROPERLY AUTHENTICATE OR IDENTIFY THE CONTENTS OF THE DVD PRIOR TO THE ADMISSION OF THE DVD INTO EVIDENCE?
ARGUMENT
It is respectfully submitted that the court of
appeals erred in holding that the Digital Versatile
Disc (DVD) was properly authenticated prior to the
DVD’s admission into evidence as required by Texas
Rule of Evidence 901(a).
As noted in the Seventh Court of Appeals’
opinion in this case dated April 30, 2015, “The
requirement of authentication or identification as a
condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the
7 matter in question is what its proponent claims.”
TEX. R. EVID. 901(a)(emphasis added).
The following exchange from the Reporter’s
Record as to the offering of State’s Exhibit 3 was
noted in the Seventh Court of Appeals’ opinion:
Defense Counsel: Did you personally make the copy?
Officer Ware: I don’t know if it was that exact copy, but I’m the one that downloaded the video onto a DVD and sent it to the DA. (emphasis added).
Defense counsel: But you don’t know if it’s this same copy that he has in his hand? (emphasis added).
Officer Ware: No, sir. (emphasis added).
Defense Counsel: Your Honor, we object. It’s not properly authenticated.
Trial court: Specifically, what is your objection to the authentication?
Defense Counsel: That he, Officer Ware, cannot vouch for the authenticity of this being a copy of the DVD. He doesn’t know if this is the same copy or not.
Trial court: Clear that up.
State’s attorney: Officer Ware, you were present on February 24th when your in-car video was working. Correct?
8 Officer Ware: Yes.
State’s attorney: And you stated that it was capable of making an accurate recording of your stop that day?
Officer Ware: Yes.
State’s attorney: And did you have a chance to watch the recording, the original recording – (emphasis added).
State’s attorney: - of the stop and arrest that day?
State’s attorney: And the copy that you were able to make from that system, was that an accurate recording of all of the events that took place?
Defense counsel took Officer Ware on further voir dire:
Defense counsel: You said all of the events are contained in the copy that you made. Correct?
Defense counsel: You don’t know if that’s the copy you made, do you? (emphasis added).
9 Officer Ware: Correct. (emphasis added).
Defense counsel: I stand on the objection, Judge.
Trial court: Overruled. Exhibit 3 is admitted.
Clearly, from the testimony of Officer Ware,
Officer Ware had not viewed State’s Exhibit 3 prior
to the State’s offering of the exhibit. Therefore,
Officer Ware could not authenticate the DVD as a
condition precedent to the DVD’s admission into
evidence.
Based on the foregoing, Petitioner respectfully
requests this Honorable Court grant his Petition for
Discretionary Review.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the Petitioner
respectfully prays this Court grant this Petition
and, upon reviewing the judgment entered below,
reverse this cause and remand this case for a new
trial.
10 Respectfully submitted,
BIRD, BIRD & RABE ATTORNEYS AT LAW P.O. BOX 1257 CHILDRESS, TEXAS 79201
BY: /s/ Dale A. Rabe, Jr. DALE A. RABE, JR., ATTORNEY FOR PETITIONER
TELEPHONE NO.: 940-937-2543 FACSIMILE NO.: 940-937-3431 E-MAIL: birdbirdrabe@gmail.com STATE BAR NO.: 24027638
11 APPENDIX
1. Letter from Court of Appeals April 30, 2015
2. Judgment, Trial Court’s Rulings Affirmed
3. Memorandum Opinion
12 CERTIFICATE OF COMPLIANCE
I hereby certify that the above and foregoing
Petition for Discretionary Review is 1,250 words in
its completion, signed on this the 6th day of July,
2015, in accordance with the rules governing same.
/s/ Dale A. Rabe, Jr. DALE A. RABE, JR.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy
of the foregoing Petition for Discretionary Review
was delivered as indicated below on this the 6th day
of July, 2015, to the following:
Mr. Luke Inman VIA E-SERVICE District Attorney 800 West Avenue, Box 1 Wellington, Texas 79095
Mr. Salvador Mirola VIA U.S. MAIL TDCJ # 01924622 998 County Road AA Plainview, Texas 79072
13 FILE COPY
BRIAN QUINN Chief Justice Court of Appeals VIVIAN LONG Clerk
JAMES T. CAMPBELL Justice Seventh District of Texas MAILING ADDRESS: MACKEY K. HANCOCK Justice Potter County Courts Building P. O. Box 9540 79105-9540 501 S. Fillmore, Suite 2-A PATRICK A. PIRTLE Justice Amarillo, Texas 79101-2449 (806) 342-2650
www.txcourts.gov/7thcoa.aspx
April 30, 2015
Luke McLean Inman Dale A. Rabe District Attorney BIRD, BIRD & RABE 800 West Ave., Box 1 P.O. Box 1257 Wellington, TX 79095 Childress, TX 79201-1257 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
RE: Case Number: 07-14-00182-CR Trial Court Case Number: 5635
Style: Salvador Fernandez Mirola v. The State of Texas
Dear Counsel:
The Court this day issued an opinion and judgment in the captioned cause. TEX. R. APP. P. 48.
In addition, pursuant to Texas Government Code, Sec. 51.204(b)(2), exhibits on file with this Court, if any, will be destroyed three years after final disposition of the case or at an earlier date if ordered by the Court.
Very truly yours, Vivian Long VIVIAN LONG, CLERK
xc: Honorable Stuart Messer (DELIVERED VIA E-MAIL) Zona Prince (DELIVERED VIA E-MAIL) FILE COPY
No. 07-14-00182-CR
Salvador Fernandez Mirola § From the 100th District Court Appellant of Childress County § v. April 30, 2015 § The State of Texas Opinion by Justice Hancock Appellee §
J U D G M E N T
Pursuant to the opinion of the Court dated April 30, 2015, it is ordered, adjudged
and decreed that the judgment of the trial court be affirmed.
Inasmuch as this is an appeal in forma pauperis, no costs beyond those that
have been paid are adjudged.
It is further ordered that this decision be certified below for observance.
oOo In The Court of Appeals Seventh District of Texas at Amarillo
SALVADOR FERNANDEZ MIROLA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court Childress County, Texas Trial Court No. 5635, Honorable Stuart Messer, Presiding
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Salvador Fernandez Mirola, appeals the trial court’s order adjudicating
him guilty of the state jail felony of possession of a controlled substance,
methamphetamine, and sentencing him to twenty-four months’ confinement in a state
jail facility.1 On appeal from that judgment, he contends the trial court abused its
discretion by admitting an unauthenticated police video of his subsequent arrest for
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010). possession of marijuana. He also challenges the sufficiency of the evidence that would
show he violated the terms and conditions of his community supervision. We will affirm.
Factual and Procedural History
Appellant was charged with the state jail felony offense of possession of a
controlled substance, charges to which he pleaded guilty on February 18, 2014, and for
which he was placed on three years’ deferred adjudication community supervision. On
March 4, 2014, the State filed its motion to proceed to adjudication. In it, the State
alleged that, within a week of having been placed on deferred adjudication community
supervision, appellant had possessed and consumed marijuana and, in doing so,
violated the conditions of his community supervision. On April 23, 2014, the trial court
held a hearing on the State’s motion to proceed to adjudication. The State presented
evidence that appellant committed an offense against Texas law, that he failed to notify
his community supervision officer within forty-eight hours of his arrest for said offense,
and that he consumed marijuana, all being violations of the terms and conditions of his
community supervision. After hearing the evidence, the trial court found that appellant
had violated the conditions of his community supervision, adjudicated him guilty of the
original charges, and imposed a sentence of twenty-four months’ confinement in a state
jail facility. Appellant has appealed to this Court, challenging the admission of the police
video recording of the encounter leading to appellant’s arrest and the sufficiency of the
evidence to support the State’s allegations.
2 Admission of Police Video
Appellant complains that the trial court abused its discretion when it admitted the
police video showing the officer’s approach, interaction with appellant, and appellant’s
arrest for possession of marijuana. He maintains that the video was unauthenticated,
and, therefore, the trial court’s admission of it ran afoul of Rule 901. See TEX. R. EVID.
901.
Defense counsel took the responding officer, Chad Ware, on voir dire, which, in
part, revealed the following:
Defense counsel: I’ll presume for – what you’ve got there in your hand, you said, is a copy of the video. Correct?
Officer Ware: He’s got it. I don’t.
Defense counsel: Oh, I’m sorry. You testified it’s a copy. Do you know where the original is?
Officer Ware: It’s on our computer in the office. These are all stored in the computer.
Defense counsel: Did you personally make this copy?
Officer Ware: I don’t know if it was that exact copy, but I’m the one that downloaded the video onto a DVD and sent it to the DA.
Defense counsel: But you don’t know if it’s this same copy that he has in his hand?
Officer Ware: No, sir.
Defense counsel: You Honor, we object. It’s not properly authenticated.
Trial court: Specifically, what is your specific objection to the authentication?
Defense counsel: That he, Officer Ware, cannot vouch for the authenticity of this being a copy of the original DVD. He doesn’t know if this is the same copy or not.
3 Trial court: Clear that up.
State’s attorney: Officer Ware, you were present on February 24th when your in-car video was working. Correct?
State’s attorney: And you stated that it was capable of making an accurate recording of your stop that day?
State’s attorney: And did you have a chance to watch the recording, the original recording –
State’s attorney:--of the stop and arrest that day?
State’s attorney: And the copy that you were able to make from that system, was that an accurate recording of all of the events that took place?
State’s attorney: And is that entire recording contained on the copy that you made that’s contained in State’s Exhibit 3?
Defense counsel: You said all of the events are contained in the copy that you made. Correct?
Defense counsel: You don’t know if that’s the copy you made, do you?
Officer Ware: Correct.
4 Standard of Review and Applicable Law
We review a trial court’s decision as to whether evidence is properly
authenticated for an abuse of discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex.
Crim. App. 2012); see Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). A
trial court does not abuse its discretion by admitting evidence when it reasonably
believes that a reasonable juror could find that the evidence has been authenticated.
See Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007).
“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). One means of satisfying
the authentication requirement is by testimony that a matter is what it is claimed to be.
See TEX. R. EVID. 901(b)(1); see also Tienda, 358 S.W.3d at 639 n.22. Evidence may
also be authenticated by “[a]ppearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances.” TEX. R. EVID.
901(b)(4); see also Tienda, 358 S.W.3d at 639 n.22; Campbell v. State, 382 S.W.3d
545, 548 (Tex. App.—Austin 2012, no pet.). Additionally, authentication may be
accomplished by way of “[i]dentification of a voice, whether heard firsthand or through
mechanical or electronic transmission or recording, by opinion based upon hearing the
voice at anytime under circumstances connecting it with the alleged speaker.” See TEX.
R. EVID. 901(b)(5). Rule 901 “does not erect a particularly high hurdle, and that hurdle
may be cleared by circumstantial evidence.” Campbell, 382 S.W.3d at 548 (quoting
Peter T. Hoffman, Texas Rules of Evidence Handbook, Article IX at 948 (8th ed. 2008–
09)). The proponent of evidence does not need to “rule out all possibilities inconsistent
5 with authenticity, or to prove beyond any doubt that the evidence is what it purports to
be.” Id. “The ultimate question whether an item of evidence is what its proponent
claims then becomes a question for the fact-finder . . . .” Tienda, 358 S.W.3d at 638
(citing Druery, 225 S.W.3d at 502).
Analysis
Based on Officer Ware’s testimony regarding the DVD, the appearance and
contents of the DVD showing appellant and Ware situated in a manner consistent with
the other properly admitted evidence, and the ability of the trial court to identify the
individuals and their voices by seeing those individuals and hearing their voices in such
a way as to be able to connect the voices with the alleged speakers, the trial court had
before it sufficient direct and circumstantial evidence that the DVD was, in fact, what the
State purported it to be: a copy of the original recording of the stop and arrest that took
place on February 24, 2014.2 The trial court’s admission of the DVD was not an abuse
of discretion. We overrule appellant’s point of error.
Sufficiency of the Evidence
Appellant maintains that the evidence is insufficient to prove that he violated the
terms of his community supervision. The order by which he was placed on deferred
adjudication community supervision provided the following conditions:
1. Commit no offense against the laws of this State, any other State, the United States, or any governmental entity. You shall notify the 100th Judicial District Community Supervision Officer in charge of your case 2 To the extent appellant may be understood to complain on appeal of the admission of the duplicate rather than the original, we note that such a complaint was not lodged in the trial court and would not be preserved for our review. See TEX. R. EVID. 1003; TEX. R. APP. P. 33.1.
6 within forty-eight (48) hours if arrested and/or charged with a criminal offense.
2. Avoid injurious or vicious conduct and totally abstain from the purchase, use, or consumption of alcoholic beverages of any kind, marijuana, pills, narcotics, controlled substances, harmful drugs, glue or paint sniffing, or any chemical which might cause intoxication unless prescribed by a licensed physician for legitimate medical reasons.
The State alleged that he violated Conditions 1 and 2 of his community supervision by
possessing and consuming marijuana on February 24, 2014. At trial, there would be
testimony presented that appellant violated Condition 1 by also failing to notify his
community supervision officer within forty-eight hours of his arrest. Appellant
challenges the sufficiency of the evidence as to all three allegations: possession,
consumption, and failing to notify.
Standard of Review and Applicable Law
Given the unique nature of a revocation hearing and the trial court’s broad
discretion in the proceedings, the general standards for reviewing sufficiency of the
evidence do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana
2003, pet. ref’d). Instead, we review the trial court’s decision regarding community
supervision revocation for an abuse of discretion and examine the evidence in a light
most favorable to the trial court’s order. See Garrett v. State, 619 S.W.2d 172, 174
(Tex. Crim. App. [Panel Op.] 1981). In determining questions regarding sufficiency of
the evidence in community supervision revocation cases, the burden of proof is by a
preponderance of the evidence. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.
App. 2006) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984) (en
banc)). A preponderance of the evidence exists when the greater weight of the credible
7 evidence creates a reasonable belief that the defendant has violated a condition of his
or her supervision. See id. at 763–64; Scamardo v. State, 517 S.W.2d 293, 298 (Tex.
Crim. App. 1974). The trial judge is the trier of fact and the arbiter of the credibility of
the testimony during a hearing on a motion to adjudicate. See Garrett, 619 S.W.2d at
174. Proof of a violation of a single term and condition of community supervision is
sufficient to support a trial court’s decision to adjudicate. See Sanchez v. State, 603
S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); Antwine v. State, 268 S.W.3d 634,
636 (Tex. App.—Eastland 2008, pet. ref’d).
The record shows that a call came in regarding individuals smoking marijuana in
a car parked at a fast food restaurant. Officer Ware was dispatched to the identified
location where he came in contact with appellant and several friends parked in a car.
Ware testified that he smelled the distinctive odor of burnt marijuana as he approached
the car. He testified that, after he approached the car and began speaking with
appellant, appellant admitted that the men—using the pronoun “we”—were smoking
marijuana. Indeed, appellant can be heard making such an admission on the DVD
recording of the encounter. Further, appellant pointed Officer Ware’s attention to the
remnants of the smoked marijuana cigarette that was located on the ground near the
driver’s side door, appellant’s location upon Ware’s arrival at the scene. Ware testified
that he did see the remnants of a marijuana cigarette at the location to which appellant
directed him. Such evidence is sufficient to establish by a preponderance of the
evidence that appellant possessed marijuana on February 24, 2014, in violation of the
terms and conditions, specifically Condition 1, of his community supervision by
8 committing an offense against the laws of the State of Texas. Proof of the violation of
this single condition of community supervision was sufficient to support the trial court’s
decision to adjudicate appellant guilty. See Sanchez, 603 S.W.2d at 871; Antwine, 268
S.W.3d at 636. We overrule appellant’s contention.
Conclusion
Having overruled appellant’s points of error on appeal, we affirm the trial court’s
judgment adjudicating appellant guilty of possession of a controlled substance. See
TEX. R. APP. P. 43.2(a).
Mackey K. Hancock Justice
Do not publish.