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

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/17/2015 9:17:56 AM CHRISTOPHER A. PRINE Clerk
2

Identity of Parties and Counsel

The following is a complete list of all parties to the trial court’s judgment, and the 

names and addresses of all trial and appellate counsel:

Anthony Michael Longoria ................................................................................... Appellant

State of Texas .........................................................................................................Appellee

James Tucker Graves .............................................Appellant’s Appointed Counsel at Trial

402 Main St., Ste. 200

Houston, Texas 77002

Abigail Anastasio ...................................................Appellant’s Appointed Counsel at Trial

50 Briar Hollow Lane, Suite 235 W.

Houston, Texas 77027

Coby Leslie .....................................................................Assistant District Attorney at Trial

Harris County District Attorney’s Office

1201 Franklin

Houston, Texas 77002

Adam B. Brown ................................................Appellant’s Appointed Counsel on Appeal

300 Main, Ste. 200

Houston, Texas 77002

Alan Curry ................................................................Assistant District Attorney on Appeal

Harris County District Attorney’s Office

1201 Franklin

Houston, Texas 77002

Hon. Renee Magee ..............................................................................................Trial Judge
3

Contents

 Page

Identity of Parties and Counsel ..................................................................................2

Table of Contents.......................................................................................................3

List of Authorities ......................................................................................................5

Statement of the Case ...............................................................................................10

Issues 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 Sixth 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 Arguments .....................................................................................11

Background Facts.....................................................................................................12

Arguments and Authorities ......................................................................................16

 Issues One, Two, and Three ...............................................................................16
4

 A. Facts.......................................................................................................16

 B. Standard of Review ...............................................................................17

 C. The trial court erred in including the limiting instruction 

 in the jury charge..................................................................................17

 D. The 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

 Issue 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 harmed Appellant’s substantial rights. ..................................43

 

Prayer .......................................................................................................................47

Certificate of Service................................................................................................48

Certificate of Compliance ........................................................................................48
5

List of Authorities

Cases:

Agbogwe v. State, ..............................................................................................20, 29

 414 S.W.3d 820 (Tex. App.-Houston [1st Dist.] 2013, no pet.) 

Almanza v. State, ...............................................................................................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. 2009)

Barshaw v. State, ...............................................................................................44, 47

 342 S.W.3d 91 (Tex. Crim. App. 2011)

Blevins v. State, .......................................................................................................18

 884 S.W.2d 219 (Tex. App.-Beaumont 1994, no pet.)

Brown v. State, ........................................................................................................41

 14-03-01265-CR, 2005 WL 363950

 (Tex. App.—Houston [14th Dist.] Feb. 17, 2005, 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. State, ..................................................................................................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

 05-07-00540-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

 953 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.—Houston [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. Illinois, ................................................................................................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 Aug. 7, 2014, pet. ref’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.—Dallas 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 186 (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. CONST. amend. VI..................................................................................passim

TEX. CODE CRIM. PROC. art. 36.14 ....................................................................18, 19

TEX. R. APP. P. 44.2 ...........................................................................................25, 43

TEX. R. EVID. 105 .............................................................................................18, 19

TEX. R. EVID. 901 ..............................................................................................32, 33

Other Sources:

Daniel D. Blinka, Ethics, Evidence, and the Modern Adversary Trial, 

 19 Geo. J. Legal Ethics 1, 19 (2006) ..................................................................29
10

To the Honorable Justices of the Court of Appeals:

Statement of the Case

Appellant Anthony Michael Longoria was charged by indictment with the first

degree felony offense of aggravated robbery, alleged to have occurred on February 21, 

2013. CR20. Appellant entered a plea of not guilty and a jury found him guilty. 

CR105; 127. The jury assessed a sentence of 20 years imprisonment. CR127. 

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

CR135. Appellant filed timely written notice of appeal. CR131. 

Issues Presented

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 Sixth 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. 
11

Summary of the Arguments

Issues One, Two, and Three: The trial court erred in providing a limiting 

instruction for extraneous offense evidence over Appellant’s objection during the guiltinnocence 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 counsel’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 court erred in admitting during the punishment phase a 

video recording that was not properly authenticated. The authenticating witness had no 

personal knowledge that the recording equipment was functioning properly. 

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 recording system was capable of producing an accurate 
12

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, the complainant, Branislav 

Kupresakovic, was at his Katy home with his wife and his 21-year-old son. 3RR15-20. 

He heard a knock at the front door, looked through the peephole, and observed a young 

Hispanic male, whom he assumed to be a friend of his son. 3RR20. When complainant 

opened the door a little bit the male pushed against the door. 3RR20-21. Two 

additional males appeared; the complainant recalled that one 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. The 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

Kupresakovic, retrieved the complainant’s handgun from under the bed. 3RR43. When 

one of the intruders 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 follow 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 until numerous patrol cars arrived and stopped the vehicle. 3RR76-77. 

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 as 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 recording. 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. 

After 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, who
14

came up with the idea to rob King’s marijuana dealer.1Appellant 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, Enriquez 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 threw the gun out the window of King’s vehicle a short distance away. SX64

In the vehicle investigators located a backpack containing two dark-colored

bandanas, another backpack containing duct tape, and three black 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 scene 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 several occasions. 4RR14. 

2 Codefendant Brandon Trey King 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 tried to convince him to leave and go the mall, 

as planned. 3RR169. King testified that Appellant 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 dropped off a friend named Jackson; but thereafter 

at the Sheriff’s office King told Appellant to “save himself and tell the truth.” 

3RR176, 204-205. King testified that the backpack containing the two bandanas was 

his, and that the backpack 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 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. 

A. Facts

Appellant objected to the inclusion of the following limiting instruction for 

extraneous offenses in the jury charge:

You are further instructed that if there is any evidence

before you in this 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, opportunity, 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 really hasn’t been any evidence of extraneous 

offenses” and requested that the instruction be deleted from the charge. 4RR12. The 
17

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 charge. 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 must 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.” Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007).

C. The trial court erred in including the limiting instruction 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 deliver 
18

to the jury “a written charge distinctly setting forth the law applicable to the case.” Id. 

at 247. But the Court acknowledged that a trial judge does not have a duty to instruct 

the jury on all potential defensive issues, lesser-included offenses, or evidentiary 

issues, because these 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 limiting 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 (Tex. App.-Beaumont 1994, no pet.). For example, a party might well 

intentionally forego a limiting instruction as part of its “deliberate ... trial strategy to 

minimize the jury’s recollection of the unfavorable evidence.” Id., quoting United 

States v. Johnson, 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 obligation 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 considered 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 the 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 stolen 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 given. Delgado, 235 S.W.3d at 250-52. 

D. The error infringed on Appellant’s Sixth Amendment right to 

counsel. 

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, 

including extraneous offenses, is properly a matter of trial strategy, namely, “to 

minimize the jury’s recollection of the unfavorable evidence.” Id. at 249. Numerous 
20

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 remind 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.—Houston [1st Dist.] 2014), pet. ref’d (trial counsel’s choice not to 

request a burden-of-proof instruction and a limiting instruction about extraneous 

offenses was pursuant to valid strategy to avoid drawing further attention 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 inquiry 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 the 
21

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 that 

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 must employ a standard in which judicial 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 concerning a jury charge on a defensive issue, a court 
22

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 acknowledged 

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 Supreme 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, the 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 failure 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 would serve only to draw attention to it. 435 U.S. at 340-41, 98 S.Ct. at 
23

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 instruction over defense 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 was designed to protect. Id. 

The 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 in an adversary 

system of criminal 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 the Court held that in 

this case there was no Sixth Amendment violation because the instruction (1) was 

accurate, (2) was permissible, and (3) concerned a basic constitutional principle that 

governs the administration of criminal justice. 435 U.S. at 341-42, 98 S. Ct. at 1096

(the Sixth Amendment does not “confer upon defense counsel the power to veto the 

wholly permissible actions of the trial judge”). 

The instant 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 extraneous offense evidence 
24

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 constitutional 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 counsel.

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, the 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 strategy, whereas the 
25

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 

been told not to consider at all”). Accordingly, the trial court’s interference 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. TEX. R. APP. 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 

contribute to the conviction or punishment.” TEX. R. APP. 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 possibly have prejudiced the jurors’ decision-making. Pollard v. State, 

255 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.” Motilla 
26

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 

entire record in a neutral 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 finding beyond a reasonable doubt that the error did 

not influence the jury’s decision making. Appellant’s defense was that he was 

surprised by Enriquez’s impulsive plan; he was unaware that Enriquez had a gun; he

did not have the intent to commit robbery; and 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 Appellant’s statement and King’s 

testimony that Appellant was not a party to any planning. Instructing the jury 

regarding its consideration of extraneous offenses likely called the jury’s attention to 

Appellant’s admitted marijuana use. Moreover, the instruction 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 forced 
27

to argue in closing that Appellant’s marijuana use had not been proved 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 suggesting 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, reversal is 

required.

2. Harm Analysis under the Almanza Standard 

Because Appellant preserved his complaint, the Court must reverse 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 gauge harm, the court reviews (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. The instruction likely caused the jury to focus on Appellant’s admitted 
28

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 courts 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 admitted and strategy may have been not to 

remind 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

Houston [1st Dist.] 2014), pet. ref’d (trial counsel's choice not to request a burden-ofproof instruction and a limiting instruction about 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 

emphasize the damaging inference”). 

If, as the Court of Criminal Appeals has readily acknowledged, foregoing a 

limiting instruction to minimize the jury’s recollection of unfavorable evidence 

constitutes a valid strategy, Delgado, 235 S.W.3d at 250, then the instruction must, in 

some cases, be capable of causing “some harm.” This is such a case, because the 

evidence of extraneous conduct was, 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 motive, 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 authenticated 

pursuant to Texas Rule 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 Clopton, 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 emergency 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 arrived at the scene, he viewed a video that was made by 

McHugh’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 recording had not been tampered with or where it

originated from. The defense further objected that Officer McHugh’s testimony was 

necessary to authenticate the video because Sergeant Clopton could not establish 
31

whether the recording device was working properly 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 fixed 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 the 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 approximately 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, 239 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.” TEX. R. EVID. 901(a). Rule of Evidence 901 governs the 

authentication requirement for the admissibility of evidence and is the appropriate 

analysis for the authentication of recordings. 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. TEX. R. EVID. 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. TEX.R.

EVID. 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.” TEX. R.

EVID. 901(b)(9).

Applying these provisions, there are at least two ways to authenticate 

photographic evidence including videos. Standmire v. State, --- S.W.3d ----, 2014 WL 

3882940, at *6 (Tex. App.—Waco Aug. 7, 2014, pet. ref’d). One way is 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 this case, the authenticating witness did not witnesses 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 2002, no pet.). This method is commonly used with security videos.

Id. For authentication of such photographic or video evidence, the authenticating

witness usually (1) describes the type of system used for recording and whether it was 

working properly; (2) testifies 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 publication). 

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 activated; (3) how 
34

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 the 

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 testimony 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 events depicted on the videotape. Id. at 720. The 

authenticating witness testified as follows: on the morning of the 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 it 
35

with police officers; and he viewed tape again just prior to his trial testimony and what 

he saw was identical to what he had seen on tape on day of offense. Id.

In the instant case, Sergeant Clopton did not establish how the equipment was 

activated or deactivated; who accessed 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 

knowledge 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 store’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 employee 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 recording system’s hard drive shortly after the robbery and viewed the 

recording of the robbery with police officers. Id. The employee then copied the 
36

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 court 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 Clopton 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 at 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 present during the actual robbery but testified as to the manner in which the 

film was installed in the camera, how the camera was activated, the fact that the film 

was removed immediately after the robbery, the chain of its possession, and the fact 
37

that it was properly developed and contact prints made from it. Id. at 642-43. 

The deficiencies in Clopton’s testimony are more critical here because the 

recording is essentially an audio recording. The open hood of the patrol car blocks the 

camera’s view, so there is no picture to verify that the tape is continuous and 

uninterrupted, a factor courts have considered in finding a video recording 

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 officer's vehicle. Id. After 

purchasing cocaine from the defendant, the 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; see also Watson v. State, 421 S.W.3d 186, 192 

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

the officers had personal knowledge of the contents contained on the videotape, the 

tape was continuous and uninterrupted, the officers corroborated specific items 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 is 

continuous 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 created, 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 recorded 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 sufficiently authenticated by testimony from a maintenance 

supervisor of the apartment complex, who explained how the security cameras work 

and testified that the he removed the SD card from the camera at issue, reviewed its 

contents with the complainant, and copied four images onto a DVD, which 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 supervisor
39

reviewed the DVD before trial and determined that it was “a true and accurate 

depiction 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 received from 

maintenance personnel, and answered, “No, it was an exact copy on a nonrewritable 

DVD that maintenance had given me, containing four clips.” Id. 

In Randell v. State, 07-11-00493-CR, 2013 WL 309001, at *2 (Tex. 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” parts 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 the actions 

recorded on the video; that he reviewed the contents of the copy prior to testifying; that 

it had not been tampered with; that the recording was made on a device capable of 

making an accurate recording; that he was trained and capable of operating the 

computers or devices that record images 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 security 
40

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 hours 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 videotape was accurate “within 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.—Dallas 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 custodial 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 regularly 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. The 
41

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

chief. 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 videotape. 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, 14-03-01265-CR, 2005 WL 363950 (Tex. App.—Houston 

[14th Dist.] Feb. 17, 2005, pet. 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 in the store's surveillance room; all 

three witnesses testified that the outside cannister of the videotape was damaged. Id. 

The witnesses 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. An 

investigator for the Harris County District Attorney's Office also testified that the 

outside cannister of the tape had been damaged but 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 Exhibit 
42

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, authenticating witnesses must provide testimony 

demonstrating, at a minimum, how the recording was accessed and reproduced. 

Additionally, personal familiarity with the recording equipment is necessary to 

demonstrate that the equipment was capable of producing 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, the trial court’s ruling admitted the exhibit was outside the zone of 

reasonable disagreement. 

D. The error harmed Appellant’s substantial rights. 

An appellate court reviews an erroneous admission of evidence as nonconstitutional error, subject to a harm analysis under rule 44.2(b) of the Texas Rules of 

Appellate Procedure. TEX.R. APP. P. 44.2(b). The court disregards 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 influence 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 error 
43

has occurred; rather, after reviewing the record, it is the appellate court’s duty 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-constitutional error if it is unclear whether the result 

of the 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)).

When conducting a harm analysis, the court considersthe entirety of the 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 considers 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 the 

erroneously admitted evidence was cumulative. Id.

The only other evidence at punishment was documentation of Appellant’s ten 
44

prior convictions. SX66-76. The State presented evidence of a second degree felony 

conviction for possession of a controlled substance; 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 violence. 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, the 

video recording contained very damaging evidence that 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 other robber was killed 

and they’re laughing and joking about it in the 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 calculating and remorseless criminal. 5RR48-49. The 

State pointed out that the video recorded Appellant and codefendant King conspiring to 

get their story straight and fabricating a story about dropping off a friend in the 

neighborhood. While this evidence was cumulative of King’s trial testimony, several 

additional damaging portions were not cumulative. 
45

For example, the State also pointed out that they discussed the incriminating 

evidence, namely, the duct tape and the gun Appellant had wiped and tossed. The State 

argued that this conversation indicated that the robbery was planned, rather than 

spontaneous. 5RR48-49.

The State emphasized that they 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 that a firearm had been discharged and they had abandoned their 

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 Appellant 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 discredited 
46

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 was likely given significant weight by the jury, asit bore directly on the 

circumstances of the offense and Appellant’s character. 

The punishment range was 15-99 years and the jury assessed a sentence of 20 

years. CR114. While the sentence is at the low end of the range, the jury likely took 

account of Appellant’s youth, which even the State argued was a mitigating factor 

(5RR53). It is at least unclear whether the error influenced the verdict; accordingly, the 

Court should find that the error affected Appellant’s substantial 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 cause for a new trial, or alternatively, 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 APPELLANT
48

CERTIFICATE OF SERVICE

This amended document has been served on the following parties electronically 

through the electronic filing manager contemporaneously and in conjunction with efiling on December 16, 2015.

Alan Curry

Assistant Harris County District Attorney

curry_alan@dao.hctx.net

/s/ Adam B. Brown

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that the relevant sections of this computergenerated document have 9,952 words, based on the word count function of the word

processing program used to create the document. TEX. R. APP. P. 9.4 (i).

/s/ Adam B. Brown