Affirmed and Memorandum Opinion filed January 9, 2024

In The

Fourteenth Court of Appeals

NO. 14-22-00478-CR

JESSICA LYNN MUSANTE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No 1

Fort Bend County, Texas

Trial Court Cause No. 18-CCR-198221A

MEMORANDUM OPINION

Appellant Jessica Musante was charged with theft of property of more than 

$100 and less than $750. Tex. Penal Code Ann. § 31.03(e)(2)(A). She was 

convicted by a jury and sentenced to 30 days in jail. Appellant asserts two issues 

on appeal: (1) the trial court erred in admitting surveillance video of the incident 

because the video lacked a proper chain of custody; and (2) the court erred in 

admitting the police body camera video because appellant’s encounter with police 

constituted custodial interrogation without Miranda warnings. Miranda v. Arizona, 
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384 U.S. 436, 467–68 (1966). Finding no error, we overrule appellant’s issues and 

affirm the judgment of the trial court.

Background

On December 28, 2017, a Target asset protection manager observed 

appellant stuffing cosmetics worth $378.82 into her purse and leaving without 

paying for the items. Appellant objected to the introduction of a surveillance video 

showing her in the store based on hearsay, arguing the business record exception 

did not apply. Appellant also objected to the introduction of police body camera 

video because it depicted a custodial interrogation and she was not given her 

Miranda warnings. The trial court overruled both objections. 

Analysis

I. Authentication

A. Error not preserved because the objection at trial was different than the 

error argued on appeal.

In her first issue, appellant claims the court erred in admitting a surveillance 

video of the incident because the video lacked a proper chain of custody. But she 

did not preserve error on appeal because her objection in the trial court does not 

match her complaint on appeal. To preserve an error for appellate review, the 

complaining party must make a specific objection and obtain a ruling on the

objection. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). If an 

objection made in the trial court differs from the complaint made on appeal, a 

defendant has not preserved any error for review. Thomas v. State, 723 S.W.2d

696, 700 (Tex. Crim. App. 1986). 

Here, the defense objection made in the trial court — hearsay — differs 

from the defense complaint on appeal: a lack of authentication error due to an 

improper chain of custody. See H2O Sols., Ltd. v. PM Realty Grp., LP, 438 S.W.3d 
3

606, 623 n.6 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (“Authenticity of 

a document and admissibility of that document under an exception to the hearsay 

rule are separate inquiries.”) Specifically, the authentication inquiry is a 

prerequisite to admissibility. See S.D.G. v. State, 936 S.W.2d 371, 381 (Tex. 

App.—Houston [14th Dist.] 1996), writ denied). (“The requirement of

authentication or identification as a condition precedent to admissibility is satisfied 

by evidence sufficient to support a finding that the matter in question is what its 

proponent claims.”) Similarly, this court held a hearsay objection made at trial 

does not preserve a Confrontation Clause error on appeal. See Craven v. State, 579 

S.W.3d 784, 786-87 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (Finding that 

an objection made on hearsay grounds does not preserve a Confrontation Clause 

complaint on appeal.)

At trial, the defense objected to the surveillance video marked State’s 

Exhibit 2 because it was hearsay and the business record exception was not 

satisfied. The trial court overruled that objection. On appeal, appellant claims the 

trial court failed to properly authenticate the surveillance video marked State’s 

Exhibit 2 because a proper chain of custody was not established, as no one from 

the company which stored the video testified that the company received the video 

or returned it to prosecutors. 

In sum, appellant did not preserve any error for review because the objection 

at trial was different than the complaint made on appeal. See Thomas, 723 S.W.2d

at 700.

B. No authentication error because surveillance video was authenticated 

through a witness with personal knowledge.

But even if appellant preserved her authentication objection on appeal, her 

argument fails. On appeal, we review a trial court's ruling on authentication issues 

under an abuse of discretion standard. Fowler v. State, 544 S.W.3d 844, 848 (Tex. 
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Crim. App. 2018). This deferential standard requires us to uphold a trial court's 

admissibility decision when that decision is within the zone of reasonable 

disagreement. Id. A trial court is given considerable latitude with regard to its 

evidentiary rulings, and different trial judges may “reach different conclusions in 

different trials on substantially similar facts without abusing their discretion.” Id.

To authenticate a piece of evidence, the proponent must provide evidence 

sufficient to show “the item is what the proponent claims it is.” Tex. R. Evid.

901(a). Evidence may be authenticated in a number of ways, including by direct 

testimony from a witness with personal knowledge, by comparison with other 

authenticated evidence, or by circumstantial evidence. Tienda v. State, 358 S.W.3d 

633, 638 (Tex. Crim. App. 2012). “[T]he most common way to authenticate a 

video is through the testimony of a witness with personal knowledge who observed 

the scene.” Jackson v. State, 617 S.W.3d 916, 931 ((Tex. App.—Houston [14th 

Dist.] 2021, no pet.) (quoting Fowler, 544 S.W.3d at 849).

Video recordings without audio are treated as photographs and are properly 

authenticated when it can be proved that the images accurately represent the scene 

in question and are relevant to a disputed issue. Fowler, 544 S.W.3d at 849. Any 

witness who observed the object or the scene depicted in the photograph may lay 

the predicate. S.D.G. 936 S.W.2d at 381.The trial court is afforded considerable 

discretion in ruling on the admissibility of photographic evidence. Id. “When a 

motion picture or a photograph is a proper representation of an important fact in 

issue, the admission or rejection of it is a matter which rests largely within the 

discretion of the trial judge, and that decision will not be disturbed on appeal 

unless an abuse of discretion is shown.” Id. (quoting Apache Ready Mix Co., Inc.

v. Creed, 653 S.W.2d 79, 84 (Tex. App.—San Antonio 1983, writ dism'd). 

Evidence can also be authenticated by the “appearance, contents, substance,
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internal patterns, or other distinctive characteristics of the item, taken together with

all the circumstances.” Jackson, 617 S.W.3d at 931 (quoting Fowler, 544 S.W.3d 

at 849).

In a jury trial, it is the jury's role ultimately to determine whether an item of 

evidence is indeed what its proponent claims; the trial court need only make the 

preliminary determination that the proponent of the item has supplied facts 

sufficient to support a reasonable jury determination that the proffered evidence is 

authentic. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015). 

Conclusive proof of authenticity before allowing admission of disputed evidence is 

not required. Fowler, 544 S.W.3d at 848. The authentication rule 901 “merely 

requires some evidence sufficient to support a finding that evidence in question is 

what the proponent claims.” Id.

Here, the surveillance video marked State’s Exhibit 2 was properly 

authenticated because a witness with personal knowledge, the Target asset 

protection manager Christopher Beisart, testified he was operating the video 

surveillance system when the video was captured. Moreover, Beisart testified that 

the surveillance video, which has no sound, was a true and accurate representation 

of the events and that the video had not been altered in any way. Finally, the 

surveillance video was properly authenticated because Beisart testified that he 

recognized his initials on it. 

In conclusion, the surveillance video marked State’s Exhibit 2 was properly 

authenticated because Beisart had personal knowledge of the recording and 

testified it accurately represented the scene. We overrule appellant’s first point of 

error.

II. Miranda error not preserved due to the objection’s lack of specificity.

In appellant’s second point of error, appellant claims the court erred in 
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admitting the police body camera video because the video depicted custodial 

interrogation when appellant was not given her Miranda warnings.

When parts of a recording are inadmissible, and other parts are admissible, 

error is not preserved if the objection does not specifically point out which portion 

is inadmissible. Whitaker v. State, 286 S.W.3d. 355, 369 (Tex. Crim. App. 2009). 

A trial court is not obligated to search through the evidence and remove “all of the 

inadmissible references so that the recorded statements only contained the 

admissible evidence.” Id.

Here, the body camera video is about fifty-four minutes and shows Officer 

Torres and appellant as Officer Torres completes his investigation of the theft. 

Appellant argued six minutes of the body camera video was inadmissible because 

she claimed she was in custodial interrogation without having received her 

Miranda rights, but did not specify which portion of the video was inadmissible in 

her objection1. 

MR. HUGHES: Okay. Your Honor, it is our position that parts of the 

video, by no means, all, in fact, it's probably only about six minutes 

by my calculation. It's the Defense's position that the questioning of 

Officer Torres questioning Ms. Musante constitutes custodial 

interrogation. It's our position that she was, in fact, in custody. She 

was not free to leave, and that Miranda warnings were not given prior 

to that questioning beginning. So, for that reason, we would argue that 

it's not admissible pursuant to 38.22 Section 3 because the Miranda 

warnings weren't given; and as a result, it will also be inadmissible 

pursuant to Section 38.23 because it was a legal –

THE COURT REPORTER: I'm sorry. A legal what? 

MR. HUGHES: Illegally obtained.

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It is impossible to tell which six minutes appellant is referring to after viewing the entire 

body camera video.
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Thus, the error was not preserved because appellant did not specify which 

part of the recording she believed was inadmissible. We overrule appellant’s 

second point of error.

CONCLUSION

We affirm the trial court’s judgment.

/s/ Tracy Christopher

Chief Justice

Panel consists of Chief Justice Christopher, and Justices Bourliot and Hassan

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