NO. 01 -15-00213- CR IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS

AT HOUSTON

ANTHONY MICHAEL LONGORIA § APPELLANT § VS. § § THE STATE OF TEXAS § APPELLEE

__________________________________________________________________

APPEAL FROM CAUSE NO. 1378394 IN THE 337TH DISTRICT COURT OF HARRIS COUNTY, TEXAS

___________________________________________________________________

APPELLANT’S AMENDED BRIEF

___________________________________________________________________

ADAM B. BROWN SBOT No. 01728540 300 Main, Ste. 200 Houston, Texas 77002 Phone (713) 223-0051 Fax (713) 223-0877 adambrownlaw@yahoo.com ATTORNEY FOR APPELLANT

APPELLANT REQUESTS ORAL ARGUMENT ACCEPTED 01-15-00213 FIRST COURT OF APPEALS

HOUSTON, TEXAS 12/17/2015 9:17:56 AM CHRISTOPHER PRINE

CLERK2 

### Identity of Parties and Counsel The following is a complete list of all parties to the trial court’s judgment, and the
names and addr esses of all trial and appellate counsel:
Anthony Michael Longoria

................................ ................................ ................... Appellant

State of Texas

................................ ................................ ................................ ......... Appellee

James Tucker Graves

................................ ............. Appellant’s Appoint ed C ounsel at T rial 402 Main St., Ste. 200 H ouston , T exas 7 7002 Abigail Anastasio

................................ ................... Appellant’s Appoint ed C o unsel at T rial 50 Briar Hollow Lane, Suite 235 W. Houston, Texas 77027 Coby Leslie

................................ ................................ ..... Assist ant District Attorney at T rial Harris County District Attorney’s Office 1201 Franklin Houston, Texas 77002
Adam B. Brown

................................ ................ Appella nt’s Appoint ed C ounsel on A ppeal 300 Main, Ste. 200 Houston, Texas 77002 Alan Curry

................................ ................................ Assistant District Attorney on A ppeal Harris County District Attorney’s Office 1201 Franklin Houston, Texas 77002
Hon. Renee Magee

................................ ................................ .............................. T rial Judge3 

### Contents Page Identity of Parties a nd Counse l

................................ ................................ .................. 2
Table of Contents

................................ ................................ ................................ ....... 3
List of Authorities

................................ ................................ ................................ ...... 5
Statement of the Case

................................ ................................ ............................... 10
Issue s Presented

................................ ................................ ................................ ........ 10 Issue One: The trial court erred in providing a limiting instruction in the jury charge in violation of Texas Rule of Evidence 105.
Issue Two: The trial court erred in providing a limiting instruction in the jury charge in violation of Article 36.14 of the Texas Code of Criminal Procedure. Issue Three: The trial court erred in providing a limiting instruction in the jury charge in violation of Appellant’s Six th Amendment right to counsel. Issue Four: The trial court abused its discretion in admitting a video recording that was not authenticated pursuant to Texas Rule of Evidence 901. Summary of the Argument s ................................ ................................ ..................... 11 Background Facts

................................ ................................ ................................ ..... 12 Arguments and Author ities

................................ ................................ ...................... 16
Issue s One , Two, and Three

................................ ................................ ............... 164

A. Facts

................................ ................................ ................................ ....... 16
B. Standard of Review

................................ ................................ ............... 17
C. The trial court erred in including the limiting instruction in the jury charge

. ................................ ................................ ................. 17
D. T he error infringed on Appellant’s Sixth Amendment right to counsel.

. ................................ ................................ ................................ 19
E. Harm Analysis

................................ ................................ ...................... 25
1. Constitutional Error

. . ................................ ................................ ........ 25
2. Harm Analysis under the Almanza Standard

................................ .... 28
Iss ue Four

................................ ................................ ................................ ........... 30
A. Facts

................................ ................................ ................................ ....... 30
B. Standard of Review

................................ ................................ ............... 32
C. The trial court abused its discretion in admitting the video recording because it was not authenticated.

. . ................................ ........ 32
D. The error h armed Appellant’s substantial rights.

................................ .. 43 Prayer

................................ ................................ ................................ ....................... 47
Certificate of Service

................................ ................................ ................................ 48 Certificate of Compliance

................................ ................................ ........................ 485 

### List of Authorities
Cases: Agbogwe v. State , ................................ ................................ .............................. 20, 29 414 S.W.3d 820 (Tex. App.

- Houston [1st Dist.] 2013, no pet.) Almanza v. Stat e , ................................ ................................ ............................... 17, 28 686 S.W.2d 157 (Tex. Crim. App. 1984) Angleton v. State , ................................ ................................ ................................ ..... 32 971 S.W.2d 65 (Tex. Crim. App. 1998) Ballard v. State , ................................ ................................ ................................ ....... 38 23 S.W.3d 178 (Tex. App.

- Waco 2000, no pet.)
Barrios v. State , ................................ ................................ ................................ ....... 17 283 S.W.3d 348 (Tex. Crim. App. 20 09) Barshaw v. State , ................................ ................................ ............................... 44, 47 342 S.W.3d 91 (Tex. Crim. App. 2011 ) Blevins v. State , ................................ ................................ ................................ ....... 18 884 S.W.2d 219 (T ex. App.

- Beaumont 1994, no pet.)
Brown v. State , ................................ ................................ ................................ ........ 41 14

- 03

- 0 1265

- CR, 2005 WL 363950 (Tex. App.

— Houston [14th Dist.] Feb. 17, 2 005, pet. ref'd)
Burnett v. State , ................................ ................................ ................................ . 44, 47 88 S.W.3d 633 (Tex. Crim. App. 2002) Curry v. State , ................................ ................................ ................................ .... 20, 29 861 S.W.2d 479 (Tex. App.

- Fort Worth 1993, pet. ref'd) Delgado v. State , ................................ ................................ .............................. passim 235 S.W.3d 244 (Tex. Crim. App. 2007)6

Druery v. S tate , ................................ ................................ ................................ .. 17, 28 225 S.W.3d 491 (Tex. Crim. App. 2007) Ex parte Ewing , ................................ ................................ ................................ ....... 21 570 S.W.2d 941 (Tex. Crim. App. 1978)
Gallo v. State , ................................ ................................ ................................ .......... 32 239 S.W.3d 757 (Tex. Crim. App. 2007)
Garcia v. State , ................................ ................................ ................................ ........ 40 0 5

- 07

- 00540

- CR, 2008 WL 2655622 (Tex. App.

— Dallas July 8, 2008, pet. ref'd)
Garcia v. State , ................................ ................................ ................................ ........ 44 126 S.W.3d 921 (Tex. Crim. App. 2004) Hammock v. State , ................................ ................................ ................................ ... 18 46 S.W.3d 889 (Tex. Crim. App. 2001)
Harris v. State , ................................ ................................ ................................ ........ 26 790 S.W.2d 568 (Tex. Crim. App. 1989) Hernandez v. State , ................................ ................................ ................................ .. 26 80 S.W.3d 63 (Tex. App.

– Amarillo 2002, no pet.) Huffman v. State , ................................ ................................ ................................ ..... 33 746 S.W.2d 212 (Tex. Crim. App. 1988) King v. State , ................................ ................................ ................................ ........... 44 9 53 S.W.2d 266 (Tex. Crim. App. 1997) Lakeside v. Oregon , ................................ ................................ .......................... passim 435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978) Langham v. State , ................................ ................................ ................................ .... 26 305 S.W.3d 568 (Tex. Crim. App. 2010)7

McGowan v. State , ................................ ................................ ................................ .. 19 375 S.W.3d 585 (Tex. App.

- Houston [14th Dist.] 2012, pet. ref'd)
McNeil v. State , ................................ ................................ ................................ . 20, 29 452 S.W.3d 408 (Tex. App.

— Ho uston [1st Dist.] 2014), pet. ref’d)
Morales v. State , ................................ ................................ ................................ ...... 44 32 S.W.3d 862 (Tex. Crim. App. 2000) Motilla v. State , ................................ ................................ ................................ ....... 26 78 S.W.3d 352 (Tex. Crim. App. 2002) Page v. State , ................................ ................................ ................................ ........... 36 125 S.W.3d 640 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref'd)
Patterson v. Illi nois , ................................ ................................ ................................ 22 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988)
Pollard v. State , ................................ ................................ ................................ ....... 26 255 S.W.3d 184 (Tex. App.

– San Antonio 2008), aff'd , 277 S.W.3d 25, 33 (Tex. Crim. App. 2009) Randell v. State , ................................ ................................ ................................ . 34, 40 No. 07

– 11

– 00493

– CR, 2013 WL 309001 (Tex.App.

- Amarillo Jan. 25, 2013, pet. ref'd)
Reavis v. State , ................................ ................................ ................................ .. 33, 35 84 S.W.3d 716 (Tex. App.

- Fort Worth 2002, no pet.) Ryan v. State , ................................ ................................ ............................... 18, 20, 29 937 S.W.2d 93 (Tex. App.

- Beaumont 1996, pet. ref'd)
Sakil v. State , ................................ ................................ ................................ ........... 17 287 S.W.3d 23 (Tex. Crim. App. 2009) Schutz v. State , ................................ ................................ ................................ ......... 44 63 S.W.3d 442 (Tex. Crim. App. 2001)8

Snowden v. State , ................................ ................................ ............................... 25, 26 353 S.W.3d 815 (Tex. Crim. App. 2011) Standmire v. State , ................................ ................................ ................................ ... 33

--- S.W.3d

---- , 2014 WL 3882940 (Tex. App.

—

Waco Au g. 7, 2014 , pet . r ef ’d ) State v. Frye , ................................ ................................ ................................ ............ 22 897 S.W.2d 324 (Tex. Crim. App. 1995) Strickland v. Washington , ................................ ................................ ........................ 21 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
Teeter v. State , ................................ ................................ ................................ ......... 41 05

- 06

- 00309

- CR, 2007 WL 510356 (Tex. App.

— Dal las Feb. 20, 2007, no pet.)
United States v. Johnson , ................................ ................................ ........................ 18 46 F.3d 1166 (D.C. Cir. 1995) United States v. Rhodes , ................................ ................................ .......................... 18 62 F.3d 1449 (D.C. Cir. 1995) United States v. Taylor , ................................ ................................ ........................... 37 530 F.2d 639 (5th Cir.), cert. denied , 429 U.S. 845, 97 S .Ct. 127, 50 L.Ed.2d 117 (1976)
Walters v. State , ................................ ................................ ................................ ....... 32 247 S.W.3d 204 (Tex. Crim. App. 2007)
Warren v. State , ................................ ................................ ................................ . 34, 39 No. 08

– 11

– 00029

– CR, 2012 WL 651642 (Tex. App.

- El Paso Feb.29, 2012, no pet.)9

Watson v. State , ................................ ................................ ................................ ....... 38 421 S.W.3d 18 6 (Tex. App.

— San Antonio 2013, pet. ref’d)
Weatherred v. State , ................................ ................................ ................................ 32 15 S.W.3d 540 (Tex. Crim. App. 2000)

Statutes, Codes and Constitutional Provisions : 

### U.S. C ONST


### . amend. VI

................................ ................................ .................. passim
T EX
. C ODE C RIM
. P ROC
. art. 3 6.14

................................ ................................ .... 18, 19
T EX
. R. A PP
. P . 44.2

................................ ................................ ........................... 25, 43
T EX
. R. E VID
. 105

................................ ................................ ............................. 18, 19
T EX
. R. E VID
. 901

................................ ................................ .............................. 32, 33 Other Sources: Daniel D. Blinka, Ethics, Evidence, and the Modern Adversary Trial , 19 Geo. J. Legal Ethics 1, 19 (2006)

................................ ................................ .. 2910



### To the Honorable Justices of the Court of Appeals: Stat ement of t he Case Appellant Anthony Michael Longoria was charged by i ndictment with the first degree felony offense of aggravated robbery , allege d to have occurred on February 21 , 201 3 . CR 20 . Appellant entered a plea of not guilty and a jury found him guil ty

. CR105; 127

. The j ury assessed a sentence of 20 years imprisonment . CR127

. Appellant filed a motion for new trial , which w as overruled by operation of law

. CR 135. Appellant filed timely written notice of appeal. CR 131

. 

### Issue s Presented
Issue One: T he trial court erred in providing a limiting instruction in the jury charge in violation of Texas Rule of Evidence 105. Issue Two: The trial court erred in providing a limiting instruction in the jury charge in violation of Article 36.14 of the Texas Cod e of Criminal Procedure. Issue Three: The trial court erred in providing a limiting instruction in the jury charge in violation of Appellant’s Sixth Amendment right to counsel. Issue Four: The trial court abused its discretion in admitting a video rec ording that was not authenticated pursuant to Texas Rule of Evidence 901.11 

### Summary of the Argument s
Issue s One , Two, and Three : The trial court erred in providing a limiting instruction for extraneous offense evidence over Appellant’s objection during the guilt

innocence phase. Appellant did not request a limiting instruction when the evidence was admitted, so the evidence was admitted for all purposes under Texas Rule of Evidence 105. Thus, the limiting instruction was not law “applicable to the case” under
Article 36.14 of the Code of Criminal Procedure , and should not have been given. Moreover, because foregoing a limiting instruction is a matter of trial strategy, the trial court violated Appellant’s Sixth Amendment right to counsel by overriding co unsel’s strategic decision. The instruction harmed the defense because it focused the jury’s
attention on prejudicial evidence Appellant wished to minimize, and instructed the jury to consider the evidence for specific purposes.
Issue Four: The trial c ourt erred in admitting during the punishment phase a video recording that was not prop erly authenticated. The authenticati ng witness had no personal knowledge that the recording equipment was functioning proper ly. Additionally, the authenticating witness failed to establish how the equipment was activated, how it was deactivated, and how the recording was accessed and reproduced
for trial. The trial court abused its discretion in admitting the evidence because the
State failed to establish that the recordi ng system was capable of producing an accurate12

recording. Because the video recording captured a conversation in which Appellant and the codefendant schemed to mislead the police , discussed the incriminating evidence, and demonstrated a conspicuous lack of remorse, Appellant was harmed by
its admission. 

### Background Facts During the evening of February 21, 2013, t he complainant, Branislav Kupresakovic , was at his Katy home with his wife and his 21

- year - old son . 3RR15

- 20.
H e h eard a knock at the front door, looked t hrough the peephole , and observed a young Hispanic male, whom he assumed to be a friend of his son . 3RR20

. When complaina nt opened the door a little bit the male pushed against the door. 3RR20

- 21. T wo additional males appeared ; the complainant reca lled that on e was carrying a handgun
and the other was carrying a shotgun

. 3RR20

- 21 ; 31

. One of the additional males had glasses and a dark scarf covering his face. 3RR32. T he males pushed the door open and
entered. 3RR20

- 21. One of the intruders told the complainant to get down on the ground and tried to tie him up with tape. 3RR23. The complainant yelled to his wife, who ran into the master bedroom along with the complainant’ s son. 3RR23 ; 42

. Once in the bedroom, the complainant’s son, Slaven Kupresakov ic , retrieved the complainant’s handgun from under the bed. 3RR43. When
one of the in truders entered the bedroom , Slaven shot him several times. 3RR49

- 51.13

Slaven never saw the other two intruders , who ran out of the house at the sound of gunfire . 3RR53. A neighbor noticed two males running across a yard in a suspicious manner and
decided to fo llow them in his car. 3RR76. While males circled the neighborhood in an SUV, the neighbor reported them to the Sheriff’s department and continued to follow
them unti l numerous patrol cars arrived and stopped the vehicle. 3RR 76

- 77. The two apprehended suspects were identified as Brandon Trey King and Appellant Longoria. 3RR114

- 15. The third intruder, who was killed at the scene of the
home invasion , was identified a s Douglas Enriquez. 3RR115. King and Appellant were
detained in a patrol car and their conversation recorded. 3RR113

- 114. Sergeant C. Clopton of the Homicide Division arrived at the scene where King and Appellant had been apprehended and reviewed the recor ding. 3RR113

- 14. The two suspects were
then transported to the Homicide Office. 3RR115. Appellant initially agreed to be interviewed and denied involvement, but then
indicated that he wished to terminate the interview and consult with counsel. 3RR117.
A fter speaking with King, who had admitted involvement, Appellant told Sergeant Clopton that he wanted to tell the truth. 3RR118

- 21. In a video

- recorded interview (State’s Exhibit 64) , Appellant stated that he was visiting from out of town and staying
with his cousin King

. King introduced Appellant to his friend Douglas Enriquez , who14

came up with the idea to rob K ing ’s marijuana dealer. 1 Appellant did not want to do it, but King could not be dissuaded so Appellant went along to protect King. The plan
was for Enriquez to knock on the door, kick the door down, and get the people on the
floor ; King and Appellant were to “just stand there and look intimidating.” Appellant and King wore gloves and masks and Enriquez carried the gun. Once inside the residence, Enri quez handed the gun to Appellant and went to the back room to round up the residents. Appellant immediately heard gunshots and he and King fled. Appellant thr ew the gun out the window of King’s vehicle a short distance away. SX64 In the vehicle investigat ors located a backpack containing two dark

- colored
bandana s , another backpack containing duct tape , and three bl ack air

- soft BB

- gun pistols. 3RR105

- 108. The following day, a local resident found a loaded handgun in
the street a short distance from the scen e and turned it over to the sheriff’s office.
3RR89

- 93. The gun was found to have been reported stolen in Wiley, Texas, where Appellant resided. 2 3RR142

- 43.
Codefendant Brandon Trey King testified for the defense . King testified that he was 18 years old at the time of the offense and Appellant was 20. 3RR158. King and Appellant picked up Douglas Enriquez on February 21, 2013, with the plan of going to

1 Slaven Kupresakovic initially testified that he did not sell marijuana, but thereafter testified that he had sold marijuana to King on seve ral occasions. 4RR14. 2 Codefendant Brandon Trey K ing testified that he visited family in Wiley prior to the robbery.15

the mall

. 3RR164

- 65. When King drove by the house of his marijuana dealer , Enriquez suggested robbing him . 3RR166. Enriquez exited the car first and King followed him; as they approached the house King first noticed that Enriquez had a gun in his
waistband . 3RR168 ; 200 . King was wearing a bandana and carrying duct tape. 3RR168. Appellant followed King and tri ed to convince him to leave and go the mall, as planned. 3RR169. King testified that A ppellant looked “ shocked ” when Enriquez handed him the gun after entering the house. 3RR171

- 72. When King heard shots, Appellant grabbed his arm and they ran to the car. 3RR173

- 74. After they were apprehended and placed in a patrol car, King told Appellant that they should tell police a fabricated story that they had just dro pped off a friend named Jackson; but thereafter at the Sheriff’s office King told Appellant to “sav e himself and tell the truth.”
3RR176 , 204

- 205

. King testified that the backpack containing the two bandanas was his, and that the b ackpack containing duct tape belonged to Appellant. 3RR189

- 91.

3RR193.16 

### Arguments and Authorities
Issue One: The trial court erred in providing a limiting instruction in the jury charge in violation of Texas Rule of Evidence 105.
Issue Two: The trial court erred in providing a limiting instruction in the jury charge in violation of Article 36.14 of the Texas Code of Criminal Proced ure . Issue Three: The trial court erred in providing a limiting instruction in the jury charge in violation of Appellant’s Sixth Amendment right to counsel. A. Facts Appellant objected to the inclusion of the following limiting instruction for

extran eous off

enses in the jury charge: You are further instructed that if there is any evidence before you in th is case regarding the defendant’ s committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case , you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same, in determining the motive, opportun ity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose. CR99. Appellant urged that “ there real ly hasn’ t been any evidence of extraneous
offenses ” and requested that the instruction be deleted from the charge. 4RR12. The17

trial court refused the request , stating that there was “very minimal” evidence of extraneous offenses, namely, that Appellant had used marijuana, and evidence that the gun used in the robbery had been stolen in Appellant’s hometown of Wiley, Texas.
4RR12.
B . Standard of Review To review claims of jury charge error, an appellate court must first ask whether
there was error in the c harge. Barrios v. State , 283 S.W.3d 348 , 350 (Tex. Crim. App. 2009). If there was error and if the appellant objected to the error at trial, “reversal is required if the error is ‘calculated to injure the rights of [the] defendant,’ ” meaning that “there m

ust be some harm to the accused from the error.” Sakil v. State , 287 S.W.3d 23, 25

– 26 (Tex. Crim. App. 2009) (quoting Almanza v. State , 686 S.W.2d 157, 161 (Tex. Crim. App. 1984)

. “[A]ny harm, regardless of degree, is sufficient to require reversal.” Drue ry v. State , 225 S.W.3d 491, 504 (Tex. Crim. App. 2007). C. The trial court erred in including the limiting instru ction in the jury charge . In Delgado v. State , 235 S.W.3d 244 (Tex. Crim. App. 2007) , the Court of Criminal Appeals examined whether a trial court must, sua sponte , include a
reasonable

- doubt and limiting instruction in the jury charge when the State offers evidence of an extraneous offense at the guilt stage of a criminal trial

. The Court noted
that Article 36.14 of the Code of Criminal Procedure requires the trial judge to deliver18

to the jury “a written charge distinctly setting forth the law applicable to the case.” Id.
at 247. But t he Court acknowledged that a trial judge does not have a duty to instruct the jury on all potential defen sive issues, lesser

- included offenses, or evidentiary
issues , because t hese are issues that “ frequently depend upon trial strategy and tactics. ”
Id. at 249. The Court further noted that Texas courts have held that the decision of whether to request a limit ing instruction concerning the proper use of certain evidence, including extraneous offenses, may be a matter of trial strategy. Id. , citing Ryan v.
State , 937 S.W.2d 93, 104 (Tex. App.

- Beaumont 1996, pet. ref'd) ; Blevins v. State , 884 S.W.2d 219, 230 (T ex . App.

- Beaumont 1994, no pet.)

. For example, a party might well intentionally forego a limiting instruction as part of its “deliberate ... tria l strategy to minimize the jury’ s recollection of the unfavorable evidence.” Id., quoting United
States v. Johnso n , 46 F.3d 1166, 1171 (D.C. Cir. 1995); United States v. Rhodes , 62 F.3d 1449, 1453

– 54 (D.C. Cir.1995). Moreover, if a defendant does not request a limiting instruction under Rule 105 at the time that evidence is admitted, then the trial judge has no oblig ation to limit the use of that evidence later in the jury charge. Id. at 251; Hammock v. State , 46 S.W.3d 889, 894 (Tex. Crim. App. 2001)

. Once evidence has been admitted without a limiting instruction, it is part of the general evidence and may be conside red for all purposes. Id. ; McGowan v. State , 375 S.W.3d 585, 593 (Tex. App.

- Houston [14th Dist.] 2012, pet. ref'd).19

Accordingly, the Court concluded that a limiting instruction concerning the use
of extraneous offense evidence should be given in the guilt

- stage jury charge “ only if the defendant requested a limiting instruction at the time the evidence was first
admitted. ” Id. The Court observed that if the trial counsel’s strategy was to forego objection and a limiting instruction so as not to emphasize t he evidence, this strategy was “eminently successful” because the appellant was convicted of a lesser included
offense. Id. at 254. In the instant case, Appellant did not request a limiting instruction when the
evidence of his marijuana use and the stole n gun was admitted. Accordingly, under Rule of Evidence 105, the evidence was admitted for all purposes. Thus, the limiting instruction was not law “applicable to the case” under Article 36.14 of the Code of
Criminal Procedure , and should not have been giv en. Delgado , 235 S.W.3d at 2 50

- 52

. D. The error infringed on Appellant’s Sixth Amendment right to c ounsel. By insisting on including the instruction, over Appellant’s objection, the trial court interfered with Appellant’s apparent trial strategy of not drawing attention to the
evidence. As noted by the Court of Criminal Appeals in Delgado, the decision of whether to request a limiting instruction concerning the proper use of certain evidence,
in cluding extraneous offenses, is properly a matter of trial strateg y, namely , “ to minimize the jury’s recollection of the unfavorable evidence.” Id. at 249. Numerous20

courts have found this strategy to be valid. See Delgado, supra, at 254; Ryan v. State , 937 S.W.2d 93, 104 (Tex. App.

- Beaumont 1996, pet. ref'd) (“[Absent anything in the record explaining counsel's reasoning], we can only conclude his trial strategy may
have been not to draw further attention to the extraneous offenses”); Curry v. State , 861 S.W.2d 479, 484

- 85 (Tex. App.

- Fort Worth 1993, pet. ref 'd) (holding counsel not ineffective for not requesting limiting instruction during punishment, because instruction was requested when extraneous offense evidence was admitted and strategy may have been not to r emind the jury of the evidence); Agbogwe v. S tate , 414 S.W.3d 820, 838 (Tex. App.

- Houston [1st Dist.] 2013, no pet.) (“It is reasonable to conclude ... [that] defense counsel decided that seeking a n instruction to disregard Ozoh’ s testimony would only bring further attention to it”); McNeil v. State , 452 S.W.3d 408 , 415 (Tex. App.

— Ho uston [1st Dist.] 2014), pet. ref’d (t rial counsel ’ s choice not to request a burden

- of

- proof instruction and a limiting instru ction about extraneous offenses was pursuant to valid strategy to avoid drawing further attentio n to defendant's potential extraneous offenses or misconduct ). The Court of Criminal Appeals has observed: The trial judge ordinarily should not interfere with the attorney

- client relation by inquiring into the matter of strategy and tactics. Such an inq uiry should be made only if from all appearances there could be no plausible basis in strategy or tactics for counsel ’ s actions, and then the inquiry should be made out of the presence of the jury and of the21 prosecutor. A reply by counsel that his actions are based on strategic or tactical considerations that will become apparent later in the trial should satisfy the court's inquiry, and counsel should not be required to reveal his strategy and tactics at that time. Full inquiry should be made only if after the trial from all appearances there still is no plausible basis in strategy or tactics for his actions. Ex parte Ewing , 570 S.W.2d 941, 945 (Tex. Crim. App. 1978) (footnote omitted). These observations are grounded in the Sixth Amendment’s guarantee t hat counsel be given “ wide latitude

. . . in making tactical decisions .” Strickland v. Washington , 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984)

. Courts considering a challenge to counsel’s performance pursuant to the Sixth
Amendment m ust employ a standard in which j udicial scrutiny of counsel’ s performance is highly deferential, with a “ strong presumption that counsel ’ s conduct falls within the wide range of reasonable professional assistance .” Strickland, 466 U.S.
at 689

. There is no legal basis for a court to apply a less deferential standard when making judgments concerning an attorney’s strategy in the course of trial.

“ One of the primary purposes of the Sixth Amendment right to counsel is to preserve the integrity of the attorney

- client relationship once it has been established. ” State v. Frye , 897 S.W.2d 324, 327 (Tex. Crim. App. 1995) ; Patterson v. Illinois , 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). By supplanting counsel’s strategy with the court’s own judgment conc erning a jury charge on a defensive issue, a court22

violates these Sixth Amendment principles. A judge should not interfere, or even inquire, unless “ there could be no plausible basis in strategy or tactics for counsel’s
actions .” Ewing , 570 S.W.2d at 945

. The strategy employed here has been repeatedly recognized as not just plausible,
but valid and demonstrably successful. See, e.g., Delgado , 235 S.W.3d at 254 ( finding the strategy to be an “ eminently successful one ”). In fact, the trial court acknowledge d that the extraneous offense evidence was “very minimal” (4RR12), circumstances that would further justify the strategy. In these circumstances, the trial court violated Appellant’s Sixth Amendment rights in overriding counsel’ s sound judgment.
The Su preme Court examined a similar issue in Lakeside v. Oregon , 435 U.S. 333, 335, 98 S. Ct. 1091, 1092, 55 L. Ed. 2d 319 (1978) . In an escape prosecution in which the defendant did not testify, t he trial court instructed the jury, over defense objection, that the defendant’s decision not to testify should not be considered and should not give rise to any adverse inference. 435 U.S. at 335, 98 S.Ct. at 1092. The defense objected on the grounds that the instruction itself called attention to the defendant’s fail ure to testify. 435 U.S. at 335, 98 S.Ct. at 1093. On appeal, the defendant urged that in certain circumstances, such as when a defense is presented through several witnesses, the jury may not notice a defendant’s failure to testify and
the instruction wou ld serve only to draw attention to it. 435 U.S. at 340

- 41, 98 S.Ct. at23

1095. The defendant challenged the trial court’s inclusion of the instruction over defense objection on Fifth and Sixth Amendment grounds. Id. The Court found that including the instru ction over defens e objection did not
violate the Fifth Amendment’s privilege against self

- incrimination because the jury was not likely to disregard the instruction; thus, the instruction could not violate the principle it wa s designed to protect. Id.
Th e defendant also challenged the instruction on Sixth Amendment grounds, asserting that including the instruction over defense objection interfered with trial strategy. 436 U.S. at 341; 98 S.Ct. at 1095. The Court noted that i n an adversary system of crimin al justice, there is “ no right more essential than the right to the
assistance of counsel .” 435 U.S. at 341, 98 S. Ct. at 1096 . But t he Court held that in
this case there was no Sixth Amendment violation because the instruction (1) was accurate, (2) was pe rmissible, and (3) concerned a basic constitutional principle that
govern s the administration of criminal justice

. 435 U.S. at 34 1

- 4 2 , 98 S. Ct. at 1096 (t he Sixth Amendment does not “ confer upon defense counsel the power to veto the wholly permissible act ions of the trial judge ” ).
The instan t case is distinguishable in several important respects. First, the limiting instruction was not permissible

– the Court of Criminal Appeals has mandated
that that a limiting instruction concerning the use of extra neous offense evidence24

should be given in the guilt

- stage jury charge “ only if the defendant requested a limiting instruction at the time the evidence was first admitted. ” Delgado, supra, at 249. Second, the limiting instruction did not concern a basic c onstitutional principle, but only an evidentiary issue concerning the proper use of certain evidence

. Id. As such, the Court of Criminal Appeals has held that the decision to forego the instruction is a strategic decision within the discretion of defense c ounsel. Third, the instruction in the instant case was fundamentally different in content from the challenged instruction in Lakeside , which instructed the jury that it was not to consider the defendant’s failure to testify for any purpose. In contrast, t he instruction in the instant case permitted the jury to consider evidence of extraneous offenses for certain purposes if there was proof beyond a reasonable doubt. Assuming the jury followed the instruction, it would draw the jury’s attention to the very evidence that counsel wanted to minimize. For example, Appellant admitted in his police interview (SX64) to using marijuana and that stealing marijuana was possibly the motive for the robbery. Thus, the jury was likely to find the required burden of proof met , and to find the evidence relevant for the listed permissible purposes ( motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ). The instruction in the instant case actually frustrated the defense strateg y, whereas the25

Lakeside instruction did not. See Lakeside , 435 U.S. at 340, 98 S. Ct. at 1095 (finding it “very doubtful” that the jury would “ affirmatively give weight to what they have
bee n told not to consider at all”)

. Accordingly, the trial court’s in terference with trial strategy in this case amounted to a violation of the Sixth Amendment.
E . Harm Analysis 1. Constitutional Error Because the error impinged on Appellant ’ s constitutional rights, Texas Rule of Appellate Procedure 44.2(a) applies. T E X
. R. A PP
. P . 44.2(a); Snowden v. State , 353 S.W.3d 815, 818 (Tex. Crim. App. 2011)

. Rule of Appellate Procedure 44.2(a) requires reversal in constitutional error cases “unless the court determines beyond a reasonable doubt that the error did not
contrib ute to the conviction or punishment.” T EX
. R. A PP
. P . 44.2(a). The focus is not

on whether the jury verdict was supported by the evidence, but rather whether the error at issue might poss ibly have prejudiced the jurors’ decision

- making. Pollard v. State , 2 55 S.W.3d 184, 190 (Tex. App.

– San Antonio 2008), aff'd, 277 S.W.3d 25, 33 (Tex.
Crim. App. 2009); Langham v. State , 305 S.W.3d 568, 582 (Tex. Crim. App. 2010)

. Error is not harmless “simply because the reviewing court is confident that the result the jury reached was objectively correct.” Snowden , 353 S.W.3d at 819. Nonetheless, the presence of “overwhelming evidence of guilt is a factor to be considered.” Motilla26

v. State , 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). Other factors to consider may
include the nature of the error, whether it was emphasized by the State, the probable implications of the error, and the weight the jury would likely have assigned to it in the
course of its deliberations. Snowden , 353 S.W.3d at 822. The Court should examine the
enti re record in a ne utral manner , not “in the light most favorable to the verdict.” Hernandez v. State , 80 S.W.3d 63, 65 (Tex. App.

– Amarillo 2002, no pet.) (quoting
Harris v. State , 790 S.W.2d 568, 586 (Tex. Crim. App. 1989)).
In this case there can be no fi nding beyond a reasonable doubt that the error did not influence the jury’s decision making. Appellant’s defense was that he w as surprised by Enriquez ’ s impulsive plan ; he was unaware that Enriquez had a gun; he did not have the intent to commit robbery ; a nd he only went along in order to protect his cousin (4RR19

- 20). The physical evidence

– the presence of bandanas and duct tape in King’s vehicle

– suggests that the plan was not conceived spontaneously , but this evidence does not necessarily contradict Ap pellant’s statement and King’s testimony that Appellant was not a party to any planning. Instructing the jury regarding its consi deration of extraneous offenses likely ca lled the jury ’s attention to Appellant’s admitted marijuana use . Moreover, the instruc tion directed the jury to
consider this evidence as relevant to Appellant’s motive, intent, and absence of
mistake. In response to the court’s sua sponte instruction, defense counsel was forced27

to argue in closing that Appellant’ s marijuana use had not bee n prove d beyond a reasonable doubt and could not be considered (4RR23). But this argument was likely rejected, because Appellant himself admitted to occasional marijuana use. The instruction also could have directed the jury’s attention to evidence suggest ing that Appellant had stolen the gun used in the robbery, which further undermined Appellant’s defense. For these reasons, the instruction may have influenced the jury’s decision making process and contributed to Appellant’s conviction; accordingly, reve rsal is required. 2. Harm Analysis under the Almanza Standard Because Appellant preserved his complaint, the Court must revers e if the error resulted in any harm, regardless of degree. Almanza , 686 S.W.2d at 161 , Druery , 225
S.W.3d at 504

. To ga uge harm, the court review s (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the
record of the trial as a whole. Id. These factors require a finding of harm in this case. As argued above, the sole contested issue was whether Appellant was merely present to look after his younger cousin, or whether he intended to participate in the robbery. T he instructio n likely caused the jury to focus on Appellant’s admitted28

marijuana use and to connect this evidence with the permissible purposes suggested in
the instruction

-- most notably, motive. The instruction thus brought the jury’s attention to the very evidence that the defense wanted to minimize. Counsel’s attempt to neutralize the instruction by arguing that the burden of proof was not met was likely unsuccessful. Nothing else in the jury charge served to cure the harm. It bears noting that the numerous cou rt s that have rejected claims of ineffective assistance of counsel by validating this strategy could not have come to that conclusion without implicitly finding that a limiting instruction, in some circumstances, is not entirely benign. See , e.g., Delgado, supra, at 254; Ryan v. State , 937 S.W.2d 93, 104 (Tex. App.

- Beaumont 1996, pet. ref'd) (“[Absent anything in the record explaining counsel's reasoning], we can only conclude his trial strategy may have been not to draw
further attention to the extraneous offenses”); Curry v. State , 861 S.W.2d 479, 484

- 85 (Tex. App.

- Fort Worth 1993, pet. ref'd) (holding counsel not ineffective for not requesting limiting instruction during punishment, because instruction was requested
when extraneous offense evidence was ad mitted and strategy may have been not to

r emind the jury of the evidence); Agbogwe v. State , 414 S.W.3d 820, 838 (Tex. App.

- Houston [1st Dist.] 2013, no pet.) (“It is reasonable to conclude ... [that] defense counsel decided that seeking an instruction to disregard Ozoh's testimony would only bring further attention to it”); McNeil v. State , 452 S.W.3d 408 , 415 (Tex. App.

—29

Ho uston [1st Dist.] 2014), pet. ref’d (t rial counsel's choice not to request a burden

- of

proof instruction and a limiting instru ction abo ut extraneous offenses was pursuant to valid strategy to avoid drawing further attention to defendant's potential extraneous
offenses or misconduct ); see also Daniel D. Blinka, Ethics, Evidence, and the Modern Adversary Trial , 19 Geo. J. Legal Ethics 1, 19 (2006) (noting that opponent of evidence will “frequently forego limiting instructions for fear that they will only
emp hasize the damaging inference”). If, as the Court of Criminal Appeals has readily a cknowledged, foregoing a limiting instruction to mi nimize the jury’s recolle ction of unfavorable evidence
constitutes a valid strategy, Delgado , 235 S.W.3d at 250 , then the instruc tion must, in

some cases , be capable of causing “some harm.” This is such a case, because the
evidence of extraneous conduct wa s , in the trial court’s own words “very minimal, ” and the jury might very well have overlooked the evidence but for the instruction. Moreover, the instruction directed the jury to consider the unfavorable evidence for certain specific purposes, such as mot ive, to the detriment of Appellant’s defense. Accordingly, Appellant suffered some degree of harm, requiring reversal

.

Issue Four : The trial court abused its discretion in admitting a video recording that was not a uthenticated pursuant to Texas R ule of Evidence 901.30

A. Facts During the punishment phase, the State offered State’s Exhibit 62, a video recording of a conversation between Appellant and codefendant King captured by patrol car recording equipment shortly their arrests. Sergeant Clopt on , the authenticating witness, testified that:

 most patrol vehicles are equipped with digital cameras;

 Deputy McHugh’s vehicle was equipped with a camera;

 most of these cameras are activated automatically by certain triggers, such as turning on the eme rgency lights or sirens, or driving at a certain speed;

 the cameras can also be activated manually;

 once activated, the cameras record until “deactivated”;

 when Clopton arr ived at the scene , he viewed a video that was made by M cHugh’s patrol car camera prior to his arrival ;

 State’s Exhibit 62, a DVD, was a fair and accurate copy of the recording Clopton had viewed at the scene.
5RR24

- 27. Appellant objected to the admission of the recording on the grounds that the
State failed to demonstrate that the r ecording had not been tampered with or where it originated from . The defense further objected that Officer McHugh’s testimony was necessary to authe nticate the video because Sergeant Clopton could not establish31

whether the recording device was working prop erly or if the original recording was

accurate or altered. 5RR27

- 28. The trial court overruled the objection and admitted the
exhibit. 5RR28. The exhibit was partially published but the audio equipment malfunctioned; the equipment was subsequently f ixed so that the jury could play the recording during
deliberations. 5RR28

- 31. In closing argument, the State urged the jury to play the recording and described its most damaging contents in detail. 5RR48

- 50. The video depicts the patrol car responding to th e scene of the traffic stop, and then proceeding to the scene of the home invasion. Once there, the hood is raised, blocking the camera’s view. During the portion of the video that contains the conversation between Appellant and King, which begins at appro ximately 21:52:00 of the time display, the video depicts only the raised hood of the vehicle. SX62.
B. Standard of Review A trial court’ s evidentiary rulings regarding expert testimony are reviewed under
an abuse of discretion standard. Gallo v. State , 2 39 S.W.3d 757, 765 (Tex. Crim. App. 2007) ; Weatherred v. State , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (expert testimony). A trial court abuses its discretion when its decision lies “outside the zone of reasonable disagreement.” Walters v. State , 247 S. W.3d 204, 217 (Tex. Crim. App. 2007).32

C. The trial court abused its discretion in admitting the video recording because it was not authenticated. Authentication is a condition precedent to admissibility that may be satisfied by “evidence sufficient to support a finding that the matter in question is what its proponent claims.” T EX
. R. E VID
. 901(a). Rule of E vidence 901 governs the authentication requirement for the admissibility of evidence and is the appropriate analysis for the authentication of r ecordings. Angleton v. State , 971 S.W.2d 65, 69 (Tex. Crim. App. 1998)

. Subsection (a) states that the authentication requirement for admissibility of evidence is satisfied by proof sufficient to support a finding that the matter in question
is what its proponent claims it is. T EX
. R. E VID
. 901(a). Subsection (b) provides a nonexclusive list of methods to authenticate evidence. One example given is the testimony of a witness with knowledge that a matter is what it is claimed to be. T EX
. R.
E VID
. 901(b)(1) . Another method is showing “a process or system used to produce a result and showing that the process or system produces an accurate result.” T EX
. R.
E VID . 901(b)(9). Applying these provisions, t here are at least two ways to authenticate photographic evi dence including videos. Standmire v. State , --- S.W.3d

---- , 2014 WL 3882940, at *6 (Tex. App.

— Waco Aug. 7, 2014 , pet . r ef ’d ) . One way i s by testimony that the photo or video is an accurate representation of the object or scene in question.33

Id.; Huffman v. State , 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). In this situation,
the authenticating witness is not required to be the person who operated the camera or video equipment , but must have been a witness to the contents of the recording

. Id.
If , as in th is case, the authenticating witness did not wi tnesses the events recorded, a video may be authenticated by testimony that the process or system that produced the photo or video is reliable. Id. ; Reavis v. State , 84 S.W.3d 716, 720 (Tex. App.

- Fort Worth 200 2, no pet.). This method is common ly used with security videos.
Id. For authentication of such photographic o r video evidence, the authenticating witness usually ( 1) describes the type of system used for recording and whether it was working properly; ( 2) t estifies whether he reviewed the video or photos; ( 3) testifies whether he removed the video or device that stores the photos; and ( 4) testifies whether the video or photos have been altered or tampered with. Id .; see also Randell v. State , No. 07

– 11

– 00493

– CR, 2013 WL 309001, *2

– 3, 2013 Tex.App. LEXIS 742, *5

– 7 (Tex.App.

- Amarillo Jan. 25, 2013, pet. ref'd); Warren v. State , No. 08

– 11

– 00029

– CR, 2012 WL 651642, *1

– 2, 2012 Tex.App. LEXIS 1544, *3 (Tex.App.

- El Paso Feb. 29, 2012, no pet.) (not designated for pu blication). In the instant case, Sergeant Clopton testified that he viewed the video when he
arrived at the scene of the arrest, but his testimony did not establish (1) whether the equipment was working properly; (2) how the recording device was activate d; (3) how34

it was deactivated; (4) what type of memory device the recording was stored on; (5) what type of equipment he used to view the recording; ( 6 ) if the recording was stored on a removable memory device, who removed the memory device; (7) whether th e memory device was tampered with prior to Clopton’s viewing of the recording ; (8)
how and by whom the recording was reproduced onto DVD

. While Sergeant Clopton was generally knowledgeable about the recording equipment installed in patrol vehicles; he had no personal knowledge of the reliability of the equipment in Deputy McHugh’s vehicle. A review of cases in which video recordings were found to be properly authenticated by a witness with knowledge of the recording system indicate that Clopton’s testimon y falls far short in providing the necessary information about how the recording was created and reproduced

. In Reavis v. State , 84 S.W.3d 716 (Tex.App.

- Fort Worth 2002, no pet.), the Fort Worth Court of Appeals held that a trial court did not abuse its discretion in admitting a security videotape into evidence even though the authenticating witness at trial had not personally witnessed the ev ents depicted on the videotape. Id. at 720. The authenticating witness testified as follows: on the morning of th e day of the offense, he loaded the videotape into 24

- hour

- time

- lapse recorder and pressed “record;” he removed the videotape 15 minutes after the defendant was apprehended; he viewed it35

with police officers; and he viewed tape again ju st prior to his tria l testimony and what he saw was identical to what he had seen on tape on day of offense. Id.
In the instant cas e, Sergeant Clopton did not establish how the equipment was
activated or d eactivated; who access ed the recording; how they accessed it; what it was stored on; or how it was reproduced for trial. Moreover, Sergeant Clopton could not establish whether the recording had been tampered with prior to his arrival or whether Deputy McHugh’s recording equipment was functioning properly. Clopton’s basic
kn owledge of the sheriff department’s recording equipment and his viewing of the recording are insufficient to demonstrate that the system produced an accurate recording

. In Page v. State , 125 S.W.3d 640 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref'd) , a grocery s tore ’ s videotape of a robbery was sufficiently authenticated to be
admitted into evidence at an aggravated robbery trial, even though the store employee who testified to accuracy of tape had not witnessed events that occurred in videotape

. The emp loyee testified that the grocery store’ s “brand

- new digital recording system” recorded images from 16 video cameras and automatically saved those images onto a computer hard drive. Id. at 648. The employee further testified that he accessed the digital rec ording system ’ s hard drive shortly after the robbery and viewed the recording of the robbery with police officers. Id. The employee then copied the36

recording of the robbery onto a videotape and gave it to the officers. Id. Additionally, the employee viewed the videotape before trial and testified that it had not been altered in any way. Id. The Court held that this evidence was sufficient to enable a reasonable juror to conclude that the videotape was “what the State claimed it to be” and that the
trial cou rt did not abuse its discretion in admitting the videotape of the robbery into
evidence. Id. at 648

- 49. In contrast, all the State established about the recording in the instant case is that the equipment may be activated in a variety of ways, and that C lopton viewed the recording once at the scene and viewed a copy of it once before trial. The State did not
establish how the equipment was activated in this instance, what type of device it was stored on, who accessed the recording, how Clopton viewed it a t the scene, or how and by whom it was reproduced for trial.
The Fifth Circuit has similarly required more detail regarding the creation and duplication of photographic evidence. In United States v. Taylor , 530 F.2d 639, 641

– 42 (5th Cir.), cert. denied , 429 U.S. 845, 97 S .Ct. 127, 50 L.Ed.2d 117 (1976), the court held that photographs were properly authenticated by government witnesses who were not pr esent during the actual robbery but testified as to the manner in which the
film was installed in the came ra, how the camera was activated, the fact that the film was removed immediately after the robbery, the chain of its possession, and the fact37

that it was properly developed and contact prints made from it. Id. at 642

- 43. The deficiencies in Clopton’s tes timony are more critical here because the recording is essential ly an audio recording. T he open hood of the patrol car blocks the camera’s view , so there is no picture to verify that the tape is continuous and
uni nterrupted, a factor courts have considered in finding a video recor ding authenticated. For example , in Ballard v. State , 23 S.W.3d 178, 180 (Tex. App.

- Waco 2000, no pet.), officers fitted an undercover informant with video recording camera
and activated the camera as the informant exited the offic er's vehicle. Id. After purchasing cocaine from the defendant , t he informant then met back with an officer,
who turned the video recording off. Id . In determining that the videotaped recording was properly authenticated under Rule 901, the court noted that the recording was

“ continuous and uninterrupted, ” the officer corroborated specific events in the video recording, and the fact

- finder could compare the recorded video with the physical appearance of the defendant. Id . at 182 ; s ee also Watson v. State , 42 1 S.W.3d 186, 192 (Tex. App.

— San Antonio 2013, pet. ref’d) (video recording was authenticated where

t he officers had personal knowledge of the contents contained on the videotape , th e tape was continuous and uninterrupted, the officers corroborated specifi c i tems in the recorded video, the fact

- finder could compare the recorded video with the physical appearance of the defendant , and there was no evidence of tampering)

.38

In the instant case, there is no video action to confirm that the recording i s continu ous and uninterrupted, so simply viewing the video is not sufficient to
demonstrate that it is accurate and has not been altered. Thus, it was more important to establish that the recording equipment was reliable and to establish how the recording

was crea ted, accessed, and reproduced. A number of unpublished cases also demonstrate that more detail regarding the creation and reproduction of the recording is necessary to establish the reliability of the recording system when there is no witness to the rec orded events. In Warren v. State , No. 08

– 11

– 00029

– CR, 2012 WL 651642 (Tex. App.

- El Paso Feb.29, 2012, no pet.) (mem. op., not designated for publication), a burglary prosecution, the court found a security DVD to be sufficient ly authenticate d by testimony from a maintenance supervisor of the apartment complex , who explain ed how the security cameras work
and testified that the he removed the SD card from the camera at issue, re viewed its contents with the complainant , and copied four images onto a DVD, whic h was given to the complainant

. Id. at *2. The complainant then gave the DVD to the police. Id. The supervisor testified that the camera at issue was capable of making true and accurate recordings and that the DVD contained a true and accurate depiction of images taken by the camera. Id. He stated that he did not “alter or change the images as [he] initially saw them from the original SD card in any way.” Id. The supervisor39

reviewed the DVD before trial and determined that it was “a true and accurate depict ion and recording of the four images that [he] saved off that SD card.” Id. In addition, the complainant was asked whether he altered the DVD that he rece ived from maintenance personnel, and answered, “No, it was an exact copy on a nonrewritable
DVD that m aintenance had given me, containing four clips.” Id.
In Randell v. State , 07

- 11

- 00493

- CR, 2013 WL 309001, at *2 (T ex. App.

— Amarillo Jan. 25, 2013 , pet

. ref ’d ) (mem. op., not designated for publication) , a security video was sufficiently authenticated by a manager’s testimony that he reviewed the video after being informed of the theft ; that he or the store director can “burn off” pa rts of the video for the police; that he did so in this case and provided the relevant part to the police; that the recording was made simultaneously with th e actions recorded on the video; that he reviewed the contents of the copy prior to testifying; tha t it had not been tampered with; that the recording was made on a device capable of making an accurate re cording; that he was trained and capable of operating the computers or devices that record image s from the surveillance cameras; and that the recording offered was an accurate representation of the events “as viewed by the
camera.” Id. at *2.
In Garcia v. State , 05

- 07

- 00540

- CR, 2008 WL 2655622, at *4 (Tex. App.

— Dallas July 8, 2008, pet. ref'd) (mem. op., not designated for publication) , a security40

video was properly authenticated by an apartment owner’s testimony that on the date of the murder he had given police a security videotape. Id. The videotape was recorded by a camera at his apartment complex during the hou rs surrounding the offense. Id. The

owner, who had installed the camera himself, testified that the camera was working properly on the night of the offense and he had personally loaded the videotape into the

camera . Id. He noted that the date stamp on the videotape was correct, except for the year 2008, which he had not programmed to show the correct year of 2006. Id. He further noted that the time stamp on the vide otape was accurate “wi thin a few minutes.” Id. The owner further testified that he personally checks the videotapes to be sure the security cameras at the apartment complex are working. Id.
In Teeter v. State , 05

- 06

- 00309

- CR, 2007 WL 510356 (Tex. App.

— Da llas Feb. 20, 2007, no pet.) (mem. op., not designated for publication) , a video recording made
on a school bus was properly authenticated by the transportation c ustodial director for
the school district. Id. at *9. The director described that each school bus has a “camera eye” or lens that is located just above and to the right of the bus driver and a video cassette recorder (VCR) in a locked box that is bolted to the floor or the underside of
the dashboard. Id. He testified that the VCRs are inspected reg ularly to make certain they are operating properly , and each VCR is activated when the school bus ignition is turned on and automatically stops when the school bus ignition is turned off. Id. The41

director retrieved the videotape from the bus, put it in his desk , and gave it to the police

c hief

. Id. The director testified that he watched the videotape after he retrieved it and again before testifying, and the videotape was in the same or similar condition and
there were no additions or deletions to the video tape. Id. Additionally, the school children's testimony described the events that occurred on the school bus, and these events appeared on the video. Id.
In Brown v. State , 14

- 03

- 0 1265

- CR, 2005 WL 363950 (Tex. App.

— Houston [14th Dist.] Feb. 17, 2005, pe t. ref'd) (mem. op., not designated for publication) , a store security video was properly authenticated by the manager’s testimony that he came to the store, stopped the videotape, and watched five to ten minutes of the tape to see if it had captured the incident. Id. at *4. The manager and two other witnesses were present when the videotape was removed from the recorder i n the store's surveillance room; a ll three witnesses testified that the outside cannister of the videotape was damaged. Id.
The witnesse s also testified that the reel of tape inside was twisted and stretched in one section but that they did not believe that the tape itself was damaged. Id. at * 4

- 5. A n investigator for the Harris County District Attorney's Office also testified that the

out side cannister of the tape had been damaged bu t the tape itself had not been. Id. at *5. The investigator replaced the damaged canister with an undamaged canister and left the original reel of tape , then re - recorded the actual occurrence from State's Exhib it42

4

– A into a twenty

- minute version which was admitted as State's Exhibit 6 and shown to the jury. Id. Both the manager and the investigator testified that the exhibit is a true and accurate representation of the original. Id. As these cases demonstrate, authenticat ing witnesses must provide testimony demonstrating, at a minimum, how the recording was accessed and reproduced. Additionally, person al familiarity with the recording equipment is necessary to demonstrate that the equipment was capable of produ cing an accurate recording. Sergeant Clopton’s testimony wholly failed to provide this critical information

. Clopton’s testimony fell far short of the detail provided in the cases discussed; accordingly, t he trial court ’s ruling admitted the exhibit was o utside the zone of reasonable disagreement.
D. The error harmed Appellant’s substantial rights. An appellate court review s an erroneous admission of evidence as non constitutional error, subject to a harm analysis under rule 44.2(b) of the Texas Ru le s of Appellate Procedure. T EX
. R. A PP
. P. 44.2(b). The court disregard s non - constitutional error unless it affects the substantial rights of the defendant. Id . “A substantial right is affected when the error had a substantial and injurious effect or in flue nce in determining the jury’ s verdict.” King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Neither the State nor the appellant has the burden to show harm when an error43

has occurred; rather, after reviewing the re cord, it is the appellate court’ s d uty to assess harm. Schutz v. State , 63 S.W.3d 442, 444 (Tex. Crim. App. 2001).
A conviction or punishment should not be overturned for such error if, after examining the entire record, there is a fair assurance that “the error did not have a
substantial and injurious effect or influence in determining the jury ’ s verdict.” Garcia
v. State , 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). But the court must reverse a conviction or punishment for non

- cons titutional error if it is unclear whether the result
of th e trial was free from substantial influence of the error. Barshaw v. State , 342 S.W.3d 91, 94 (Tex. Crim. App. 2011 ); Burnett v. State , 88 S.W.3d 633, 637

– 38 (Tex.
Crim. App. 2002)).
Whe n conducting a harm analysis, the court consider s the entirety of th e record, including jury instructions and closing arguments. Motilla v. State , 78 S.W.3d 352,
355

– 56 (Tex. Crim. App. 2002). In determining whether the error was harmless, the

court consider s the nature of the evidence supporting the verdict, the character of the alleged error, and how the error might be considered in connection with other evidence
in the case. Morales v. State , 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). Other relevant factors may include whether the State emphasized the error and whether t he erroneously admitted evidence was cumulative. Id. The only other evidence at punishment was documentation of Appellant’s ten44

prior convictions. SX66

- 76. The State presented evidence of a second degree felony conviction for possession of a c ontrolled s ubstance; three state jail felony convictions for theft of a firearm, burglary of a building, and unauthorized use of a motor vehicle;
and six misdemeanor convictions. All of the offenses were committed when Appellant was a teenager, and none involved viol ence. Defense counsel pointed out in argument that the felony possession case involved a prescription ADHD drug

. 5RR38. While Appellant’s criminal history certainly factored into the jury’s decision, t he video recording contained very damaging evidence t hat was at least equally important

. In response to a relevance objection, the State pointed out that the video “ shows his involvement in the planning and it shows his response after the o ther robber was killed and they’ re laughing and joking about it in th e back seat of that patrol car. It goes directly to his character. It ’ s exactly the kinds of things the jury needs to hear about. ”
5RR23.
The State highlighted in closing the most damaging portions and argued that they showed Appellant to be a calculati ng and remorseless criminal . 5RR48

- 49. The State pointed out that the video record ed Appellant and codefendant King conspiring to get the ir story straight and fabricating a story about dropping off a friend in the neighborhood. While this evidence was cumu lative of King’s trial testimony, several
additional damaging portions were not cumulative.45

For example, t he State also pointed out that they discussed the incriminating evidence, namely, the duct tape and the gun A ppellant had wip ed and tossed

. The Stat e argued that this conversation indicated that the robbery was planned, rather than spontaneous. 5RR48

- 49. The State emphasized that t hey discussed being “nice to the cops,” and “acting
like little kids

. ” The State argued that this was the “ same act that he put on when he was giving his confession ,” and that the jury should not fall for Appellant’s polite demeanor in the confession video because it was “a game” and “a ruse.” 5RR48

- 49. The State also directed the jury’s attention to the fact that they were laughing and joking about being on the show “Cops,” which demonstrated that they were not
scared or worried . The State argued that their demeanor showed a stunning lack of

remorse, considering th at a firearm had been discharged and they had abandoned thei r friend. The State urged that “[t] hese are the kinds of things that show you what kind of person he really is. ” 5RR48

- 49. In addition to the damaging portions discussed by the State in argument, the video also captured App ellant and King using offensive language, singing, and discussing whether the complainant’s wife was “hot.” SX62.
In these circumstances there is no fair assurance that the error did not influence the jury’ s assessment of punishment. The recorded conversation discredited46

Appellant’s characterization of his role in the offense

– that he was surprised by Enriquez’s actions and did not plan or willingly participate in the robbery. As argued by the State, the recording portrayed Appellant as a calculating and remorseless
criminal. This wa s likely given significant weight by the jury , as it bore directly on the circumstances of the offense and Appellant’s character

. The punishment range was 15

- 99 years and t he jury assessed a sentence of 20
years . CR114. While the sentence is at the low e nd of the range, the jury likely took account of Appellant’s youth, w hich even the State argued w as a mitigating factor (5RR53)

. It is at least unclear whether the error influenced the verdict; accordingly, the Court should find that the error affected App ellant’s substan tial rights and reverse the judgment on punishment

. Barshaw , 342 S.W.3d at 94 ; Burnett , 88 S.W.3d at 637

– 38

.47 PRAYER Appellant respectfully requests that the Court reverse his conviction and
remand the ca u se for a new trial , or alternati vely, reverse the trial court’ s judgment as to the punishment and remand the cause to the trial court for a new trial on punishment only.

Respectfully submitted , /s/ Adam B. Brown ADAM B. BROWN SBOT No. 01728540 300 Main, Ste. 200 Houston, Texas 77002 (713) 223
- 0051 (713) (FAX) adambrownlaw@yahoo.com ATTORNEY FOR APPELLANT48 CERTIFICATE OF SERVICE

T his amended document has been served on the follow ing parties electronically through the electronic filing manager contemporaneously and in conjunction with e

filing on December 16, 2015

. Alan Curry Assistant Harris County District Attorney curry_alan@dao.hctx.net

_____________________ ___________ _________________________________ /s/ Adam B. Brown

CERTIFICATE OF COMPLIANCE The undersig ned attorney certifies that the relevant sections of this computer

generated document have 9 ,952 words , based on the word count function of t he word processing program used to create the document. T EX
. R. A PP
. P. 9.4 (i).

/s/ Adam B. Brown