/6t7ff

ORIGINAL

NO. 03-13-00601 -CR

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Jose Godinez Matute, Appellant

v .

The State of Texas, Appellee

FILED IN

COURT OF CRIMINAL APPEALS

FROM THE DISTRICT COURT OF TRAVIS COUNTY. TEXAS

147TH JUDICIAL DISTRICT

NO. D-1-DC-12-202260

HONORABLE CLIFFORD BROUN

JUDGE PRESIDING

MAR 03 2015

Abel Acosta, Clerk

APPELLANTS

PETITION FOR

DISCRETIONARY REVIEW

Jose Godinez Matute

TDCJ #01879418

Wallace Unit

1675 S. FM 3525

Colorado City, Texas, 79512

RECEIVED IN

COURT OF CRIMINAL APPEALS

MAR 02 2015

Abe!Acosta, Clerk

DISCRETIONARY REVIEW CONDITIONALLY REQUESTED
IDENTITY OF PARIjES •' AIRDvOOUtyS&L

Texas Court of Criminal Appeals

P.O . Box 12308

Austin. Texas. 78711

Texas Court of Appeals

Third District

Austin, Texas

The District Court ofTravis County

147th Judicial District

Honorable Clifford Broun

Judge Presiding

Appellant's Appeals Counsel

Kristen Jernigan

Attorney at Lay

207 S. Austin Ave.

Georgetown, Texas, 7B626

District Attorney

Rosemary Lehmberg

Criminal Justice Center

509 W. 11th St.

Austin, Texas, 78701

In The 403rd Judicial Court of

Travis County. Texas
Table of Contents

Identity' of Parties and Counsel

Table of Contents

Index of Authorities

Request for Discretionary Review

Statement of the Case

Issues Presented

Statement of Facts

Summary of the Argument

Argument with Supporting Authorities

Frayer for Relief

Appendix

page

2

3

4

5.

5

6

6,7

7^9

9-11

11

11
p a_g &

'5 Texas Rules

' -'5 Tex. Penal

6,8 Tex. R. Evi

6 Tex. R. Cou

7 - Tex. Code C

7 ,8 ,1'1- Rodgers v .

" " B ••' VTCA Penal

0i Tex. Rules

9 c Haley v. Dr

9 U.S. v. Jon

9<^Tex. Prac.

9 ,1 CD iTex . Cade C

' 16 *'• Huizar v. S

10\^Alamanzar v

10 Guevara v

10 Middleton

Index of Authorities

of Appellate Procedure, Rule 2

Code §22.021 (a) (1 )(B) , (a:)(2)(B)

d. 103,401,403, 404<b),405, B06, 1002

rt Relevancy Rule 404(a), (1), (b)

rim. Proc. Ann. Art. 36.14, 36.19(Vernon's 2004)

State, 1B0 S.U. 3d 716(Tax. App-Waco 2005, no pet

Code §§37.02, 37.03, 37.04(a)

Court Hearsay Rules 801 ,803 ,B05,806

etke,376 F. 3d 316

es, 900 S.W. 2d 392

Goode, Wellborn, Shalot llule 201(g),(f), 80

rim. Proc. Ann. Art.36.19 (Vernon 2004), 36

tate, 12 S.W. 3d 479(Tex. Crim. App. 2000)

S.W.2d 157,171 (Tex. Crim. App

W. 3d 45, 52-54(Tex. Grim. App

S.W.3d 450, 453(Tex. Crim. App

State, 686

State, 152 S

f. State , 125

14-36.1 8

1 985)

2004)

2003)
Request for Discretionary Review

TO THE HONORABLE JUSTICE OF SAID COURT:

I, Jose Godinez Matute, Appellant, by and through himself, pro

se in the entitled and styled cause respectfully requests this

Honorable Court reconsider's the true facts outlined in this

Petition For Discretionary Review. In doing so, the Court of

Appeals overturns the verdict. Due to the overwhelming lack of

relevant evidence pertaining to the issues,-that the verdict

is clearly wrong and unjust. To Rule 2 of the Texas Rules of

Appellate Procedure, for allowing filing of fewer copies of the

Petition For Discretionary Review to be filed with the Court

of Criminal Appeals. Also to inform the Courts to forward copies

to the Prosecutor on appeal and the State Prosecuting Attorney,

due to the fact that the Appellant does not have access to a

photo copier.

Statement of the Case

The Appellant ,•; Jose Godinez Matute was indicted with aggravated

sexual assualt of a child. See Tex. Penal Code §22 .021 (a)(1 )(B),(a)

(2)(B). The trial took place on 23 August 2013, 403rd Judicial

District Court. The State elected to waive Counts II, III, IV,

and V of the Indictment. The Court found the Appellant guilty

of One Count of Aggravated Sexual Assault of a Child by penetrating

the child's sexual organ. The jury was elected for punishment--

with the option of a minimum of 5 years probation. The jury imposed

the sentence of 30 years in the Texas Department of Criminal

Justice on August 23, 2013. The Appeals Attorney, Kristen Jernigan,

filed for Notice of Appeals. As of November 26, 2014, the Court

of Appeals judgement was affirmed.

£T
Issues 'Presented

"Issue One: The trial court committed egregious error by failing

to sua sponte included a instruction on the burden of proof as

to extraneous offenses in the guilt-innocence phase of the trial.

"Issue Two: The trial court committed egregiuos error by failing

to sua sponte include an instruction on the burden of proof as

to extraneous offenses in the punishment phase of the trial.

• Issue Three: The State did not prove''beyond a reason of doubt

clear and convincing, "Legal Sufficiency of the Evidence", to

show that the Appellant "intentionally or knowingly" commit

aggravated sexual assault of a child, Tex. Penal Code §22.021 (a)(1 )

(B)(i),(a)(2)(B).

•Issue Four: The court erred in not allowing the Appellant to

present the video tape of the interrogation between Detective

Bonilla and the Appellant. Which if viewed by the jurors could

have affected a different outcome of the case, Tex. R. Evid.

103, 401, 403, 404(b), 405, 806, 1002; Tex- R. Court Relevancy

Rule 404(a), CD,(b!)i

Statement of the Facts

Ms. Joanna Ramirez is the mother to B.A., the alleged victim.

On 04/21/2012, Ms. Ramirez endangered her 11 year old child by

not providing the proper parental supervision, to allow her child to

enter a black vehicle with an unknown male driver. Which calls

into question on Ms. Ramirez's parental skills to provide a safe

environment for her child. The victim was reported approximately

6:4B pm. Approximately an hour later, the victim was walking

back to the apartment, 2205 Muroc St. #104, Austin, Texas. The

victim took the officer to the scene where the sexual assualt

had taken place. The officer took into evidence an open empty

condom wrapper that was found at the scene of the apparent crime.

£
During the investigation, Ms. Ramirez gave an unknown phone

number,,(405-537-3339), that appeared on her call history for

her cell phone. The victim was taken to a Sexual Assault Forensic

nurse for a SAFE examination. The victim stated that she had

sex with another Suspect, (Javier).

The unknown number was registered to the Appellant, the victim

talk to a suspect Antonio through Facebook and thrtt&qh the Appellant's

cell phone. At the Center for Child Protection, on 4/24/2012,

the victim stated that she also knows another person as "Carlos

Pinto", (known as Concepcian Martinez Pinto). The victim confirmed

that she had sex with Antonio.

Detactive Kelly and Detective Watts went to the victims school,/

(Burnet Middle School), where one of the victims school friend

stated on 4/25/2012, the victim told her that she had two boyfriends,

Antonio and Pinto.

The Grand Jury originally presented this indictment, in the

County of Travis, and State of Texas, Five Counts of Sexual..Assault

of a child younger than 17 years of age. Four of the Five indictment

counts were dropped.

Summary of the Arguments

The trial court did egregiously err by not instructing the

jury on the burden of proof as to extraneous offenses: Tex. Code

Crim. Proc. Ann. Art. 36.14 and 36.19, (Vernon's 2004), governs

the Court's duty to give instruction to the jury which also includes

the correct laws applicable to the case, and a standard review

if this is breached.

The Court in Rodgers v. State, 180 S.W. 3d 716 (Tex. App-Waco,

2005 no pet.), decided that a trial judge must instruct the jury

as to the burden of proof at the guilt-innocence phase of a trial

regardless of whether the instruction was requested by the defendant.

7
In this case, adopting the position set forth above, the trial

courA erred in failing to give the sua sponte instruction on

Mirden of proof as to give the sua sponte instruction on burden

of proof as to extraneous matters. The State submitted extraneous

evidence that affected the course on the outcome of official

proceeding, VTCA. Penal Code §§37.02, §§37.03, §§37.04(a), which

resulted in erraneous ruling, Tex. Rules of Court, Rules of Evidence

103. The Appellant did suffer egregious harm due to the extraneous

evidence against him, requiring an aquittal or a new tQal as

to guilt-innocence phase.

The State had admitted that the trial court did erred during

I

the punishment by not instructing the jury, sua sponte on the

burden of proof for extraneous offenses. The State had noted

that the Appellant was facing up to 99 years, with the minimum

of 5 years probation, which was eliminated when the wittness's

testified on hear-say from the victim with no creditable evidence

from tine State. It is the court's responsibility to give instructions

to the jury, under IHex. Rules Court, Hearsay Rules 801,803, B05,

and B06. PiUeo ilh"cJ.udiilng the correct laws applicable to the case

and the standard of review if the duty is breached. At punishment,

the court had a duty to instruct the jury that the State had

the burden of proof without reason of doubt on the extraneous

accusations from the State and the victim, whether or not the

instructions were requested. The trial court breached these standards

which affected the introduction of extraneous matters in the

punishment. The punishment egreiously harmed the Appellant, requiring

a sentence reduction or a reversal for a new punishment hearing.

Unless extraneous issues restults in an aquittal or a new trial.

The victim impeached her own testimony with conflicting statements,

about ha,yj.ng.multiole sexual history with multiple perpetrator's
which calls into question on the Appellants Actual 'innocence

addressed in Haley v. Dretke, 376 F. 3d 316. If?her statements

were t-true than the other perpetrator's would have also been indicted

The evidence the State submitted did not show any relevancy" to

the offense charged. In U.S. V. Jdries, 900 S.W. 2d 392,(the Court

of Appeals Sixth Circuit). The trial judge entered a judgement

of an acquittal, on the grounds that there had been no pro^f

by evidence. Tex. Prac. Goode, Wellborn, and Shalot, Rule 201(g),

(f),80.

Arguments with Supporting Authorities

Because it is Appellant's view that a trial court's duty to

properly instruct the jury on the law is the same at the guilt/

innocence phase of the trial and the punishment phase of the

trial. It is also the Appellant's view that the State lacked

the proper evidence to prove to the jury, without a reason of

doubt, that the Appellant did not execute the offense, but that

there was evidence to prove that the multiple perpetrator's had

committed the offense.

Since Appellant's complaint with the trial court's charge

is Art. 36.14 error, the standard of review is set out in Tex.

Code Crim. Proc. Ann. Art. 36.19(Vernon 2004).

Art. 36.19 states: "Whenever it appears by the record in any

criminal action upon appeal that any requirement of Articles

36.14, 36.15, 36.16, 36.17, and 36.18 has been disregarded; the

judgement shall not be reversed unless the error appearing from

the record was calculated to injure the rights of the defendant,

or unless it appears from the record that the defendant has not

had a fair or impartial trial.

Failing to charge on the burden of proof of the State as to

extraneous character evidence is subject to the same type of
harm analysis as any other charge error under Art. 36.19; Huizar

v. State, 12 S.W. 3d 479 (Tex. Crim. App. 2000), because instructions

on the burden of proof as to extraneous offense/bad act character

evidence are part of the law of the case under the common law,

the trial court is required to give such an instruction sua sponte.

In Rodgers v. State 180 S.W.33d 716, 722-725 (Tex. App.-Waco

20D5, no pet.), this court concluded that even without a request

for a specific instruction or an objection the burden of proof

instruction as to extraneous matters is part of the law of the

case and is necessarly to be included in the instruction to the

jury if such evidence is admitted. This court went on to say

that an Appellant need not have objected at trial to raise the

error on appeal. Applying Huizar reasoning, this Court opinioned

that the import of objecting to the absence of the burden of

proof instruction extends only to deciding the application standard

for harm analysis.

The Texas Court of Criminal Appeals Has thus far not ruled

on whether a trial court is required to give such an instruction

sua sponte in the guilt/innocence phase of the trial.

Recently, the Texas Court of Criminal; Appeals reiterated that

Alamanzar v. State, 6B6 S.W. 2d 157, 171 (Tex. Crim. App 19B5),

is the standard under which charge error is analized, and that

preservation of error is not an issue preventing review, but

is only an issue as to the level of harm analysis to apply Guevara

v. State, 152 S.W.3d 45, 52-54 (Tex. Crim. App 2004); Middleton

v. State, 125 S.W.3d 450, 453 (Tex. Crim. App 2003).

In a case originating from the same trial court, this court

has also recently ruled that the type of error is presented in

the instant case are subject to the Huizar reasoning; Rodgers

v. State 180 S.W. 3d 716 (Tex. App-Waco 2005,=no pet.)

\0
There is a split in the intermediate Appellate Courts of Texas

as to whether or not Huizar analysis applies to the guilt/innocence

phase of the trial. Some court's have declined to require a sua

sponte instruction. This Court has ruled specifically on this

issue in Rodgers v. State, 1B0 § .W .:l 3d 723-724, holding that

the trial was not fair and that the case should be acquitted

with records expunded, or granted a new trial entirely.

Prayer For Relief

The Appellant prays that the Court of Appeals acknowledges

the Mailbox Rule and the 9.2 Rule, due to the insufficient mail

system at the Wallace Unit, Colorado City, Texas. The Appellant

also prays that the Court of Appeals grants this Petition For

Discretionary Review and that they can set aside the jury's verdict,

for it was so contrary to the overwhelming weight of the evidenpe

that the verdict is clearly wrong and unjust.

Appendix

The Court of Appeals affirmed the judgement, their opiffl^tfl

was delivered and filed on November 26, 2014. The Appellant has

highlighted how the victim's awn conflicting statements impeached

her own testimony.

//

Respectfully submitted

on February 23, 2015

Jose Godinez Matute

TDCJ #01879418

Wallace Unit

1675 S. Fm 3525

Colorado City, Texas, 79512
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00601-CR

Jose Godinez Matute, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. D-l-DC-12-202260, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING

MEMORANDUM OPINION

Jose Godinez Matute was charged with aggravated sexual assault of a child by

penetrating the child's sexual organ. See Tex. Penal Code §22.021(a)(1)(B), (a)(2)(B). Atthe time

of the alleged offense, Matute wasinhistwenties, andthevictim, B.A., waseleven years old. After

a trial, the juryfound Matute guilty and assessed hispunishment at 30years' imprisonment. See id.

§§ 22.021(e) (providing that offense isfirst-degree felony), 12.32 (setting outpunishment range for

first-degree felony). Intwo issues onappeal, Matute challenges thelegalsufficiency oftheevidence

supporting his conviction and asserts that the district court erred by allowing a witness to testify

"regarding an interrogation without requiring the State to present the best evidence of that

interrogation." We will affirmthe district court's judgment of conviction.

Legal Sufficiency of the Evidence

In hisfirst issue on appeal, Matute challenges the legal sufficiency of the evidence

supporting his conviction. As set out above, Matute was charged with aggravated sexual assault of
a child. Under the Penal Code, an individual commits that offense ifhe "intentionally or knowingly

... causes the penetration ofthe anus or sexual organ of a child by any means" and "ifthe victim is

younger than 14 years of age." Tex. Penal Code § 22.021(a)(l)(B)(i), (a)(2)(B).

Under a legal-sufficiency review, appellate courts view the evidence in the light

most favorable to the verdict and determine whether "any rational trier offact could have found the

essential elements ofthe crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319

(1979). Whenperformingthis review, an appellatecourt must bear in mind that it is the factfinder's

dutytoweigh the evidence, to resolve conflicts in thetestimony, andtomakereasonable inferences

"from basic facts to ultimate facts." Id. Moreover, appellate courts must "determine whether the

necessary inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light mostfavorable to the verdict." Hooper v. State, 214 S.W.3d 9,

16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences

were resolved in favor ofthe conviction and defer to that resolution. Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

During thetrial, B.A., B.A.'s mother, variouslaw-enforcement personnel, andMatute

all testified regarding the alleged offense. Inhertestimony, thevictim'smother, J.R., testified that

at the time of the alleged offense, her daughter was eleven years old, was in special-education

classes, and had been diagnosed with various learning disabilities. Regarding the offense, she

explained that she called the police after someone from her neighborhood told herthat B.A. had

gotten into "ablack car" with aman. In addition, J.R. related that when she scanned the call history

for her cell phone, she noticed that B.A. had used the phone to call someone, and she stated that she
repeatedly called the number to find out ifthe person knew where B.A. was and gave the number

to the police. Moreover, she testified that during one ofthe calls, a man answered but that he denied

knowing B.A. Further, J.R. explained that eventually B.A. returned home looking scared and that

the police immediately questioned her about where she had been.

AfterJ.R. finished her testimony, B.A. was called to the stand. In hertestimony, B.A.

often answered questions by stating that she did not know or had forgotten the answer, but she

recalled that she called Matute on the phone,1 asked him to pick her up, and got into his black car.

Further, she explained that there was a child's car seat in the back of the car. In addition, she

testified that after she got in the car, Matute drove to various hotels but that he was unable to check

into one because he did not have any identification. Moreover, she mentioned that Matute was

trying to get a hotel room in order to have sex with her and generally described in terms consistent

with her age that sex involves "private parts" touching and touching on the "inside" ofher "private

part." Next, she statedthat shehad sex with Matuteoutsideof the car behindsome apartments, and

she described thepositionsof theirbodies,statedthatit felt"weird"whenhis "privatepart" touched

hers, and recalled that he used a condom during the incident. After describing the alleged offense,

B.A. stated that Matute dropped her off at a corner, that she walked the rest of the way home, that

therewerepolice officers presentwhen she returned home,and that she directedone of the officers

to where she had had sex with Matute. Later, B.A. testified that she told the officer that Matute was

1Inhertestimony, B.A. referred to theperson thatassaulted herasAntonio. However, she

also pointed outMatute andidentified him astheperson thatshe knew asAntonio. Forthatreason,

we will refer to Matute when summarizing her testimony.
not the first person that she had sex with and that she had previously had sex with Matute's cousin

Javier four days before the incident at issue.2

Next, one of the responding officers, Officer Jennifer Szimanski, testified that

J.R. informed her that a man had been calling on the phone for B.A. for over a week. In addition,

Officer Szimanski explained that she questioned B.A. about the incident, and Officer Szimanski

recalled that B.A. was scared and told her that "he came to do sex with me," that Matute picked her

up in a black four-door car, that Matute drove to several hotels but was unable to get a room because

he had no identification, that he took her to a parking lot behind one of the hotels to have sex,

and that Matute wore a condom. Next, Officer Szimanski testified that she asked B.A. ifshe could

guide her to where the incident occurred, that B.A. directed her to a parking lot, and that there was

a condom wrapper in the parking lot.

After Officer Szimanski concluded her testimony, the sexual-assault nurse examiner

thatexaminedB.A.,KathleenGann,testifiedregardingtheeventsthatoccurredafterOfficerSzimanski

droveB.A.to the hospital. In hertestimony, Gannrecalled whatB.A. toldherof the events, including

that "the suspect wanted to have sex," that they had sex, that "he touched her butt," and that he

touchedher in her "privatepart... with his thing. It felt awkwardbecauseno one evertouched [her]

like that." In addition,althoughGannexplainedthat it was initiallydifficultto get B.A. to talk about

what had happened, she alsorevealedthat B.A.identified a penis on a male diagramand statedthat

2 On cross-examination, B.A. admitted that she did not mention having sex with Javier

when she talked to the prosecutors, but she later explained that she did not remember that when

the prosecutors initially questioned her. Inaddition, Matute questioned B.A. regarding whether she

mentioned Javier when she was examined by the sexual-assault nurse examiner.
the suspect touched her "where she peed from and where she pooped from" with his penis and

that the suspect gave her a hickey on her neck. Regarding the exam that she performed, Gann

testified that B.A. had a hickey on her neck, that B.A. had various tears on her genitals, and that B.A.

had a tear on the perineum, which is the area between the vagina and the anus, that was "oozing

blood." Moreover, Gann explained that the injuries that she observed were consistent with B.A.'s

recollection of the events and that the tear to the perineum was recent and consistent with "blunt

trauma to her genital area earlier that afternoon." When questioned about the possibility that the

injuries could have resulted from a previous sexual encounter occurring four days earlier, Gann

related that given that the areas involved heal quickly, particularly at B.A.'s age, it was unlikely

those injuries would still be present.

In addition to this testimony, various law-enforcement personnel were called to

testify regarding the investigation and regarding testing that was done on the evidence collected.

First, Detective Brent Kelly testified that after obtaining phone records for J.R.'s cell phone, he

learned that the phone number thatJ.R. called after B.A. went missing wasregistered to a phone

belonging toMatute. Moreover, Detective Kelly explained that the phone records showed that several

calls were made between Matute's phone and J.R.'s phone in the days leading up to the incident.

In addition, Detective Trent Watts related that Matute had that phone on him when he was

questioned by the police. Further, Detective Peter Bonilla stated that when he was questioning

him, Matute admitted that he owned a black Toyota Corolla, that he knew B.A., and that she got

into his car.

Regarding testing performed on the evidence, Tyler Belknap stated that he tested

the condom wrapper for latent fingerprints. Before discussing the results ofthe testing, Belknap

5
recalled that when he obtained fingerprints from Matute, "there was some sort ofinjury to all of[his]

fingers" and that injuries "impair the analysis and comparison process." In light ofthis explanation,

he testified that in the first analysis that he performed, "the known fingerprints were incomplete to

the latent print" obtained from the condom wrapper, meaning that "the area needed for comparison

had some sort of injury to it which didn't allow [him] to either exclude or identify the person in

question." Similarly, during his cross-examination, Belknap testified that another individual in his

department obtained a similarly inconclusive result. However, Belknap also explained that when

he later used other known fingerprints for Matute, he "could immediately see that the quality of the

fingerprints were much better and would probably yield a better comparison." In fact, Belknap

explained that in his second round of testing, he was able to identify Matute's right thumb print on

the condom wrapper.

In addition to testimony regarding fingerprints, various officials testified regarding

testing done on biological samples taken from B.A. and Matute after the alleged offense. First,

Sapana Prajapati testified thatswabs takenof B.A.'s external genitals andanalregionas wellas her

shorts and underwear had blood in them. Further, she explained that she tested a swab taken from

B.A.'s neck and determined that Matute could not "be excluded as a contributor to" that sample. In

fact, she stated that "[t]he probability of selecting an unrelated person at random that could be a

contributor to this profile is approximately ... 1 in 27.49 million for Hispanics." Next, Lindsey

Ayers testified that she tested pieces of hair collected from B.A.'s underwear. Specifically, she

stated that the hair appeared to be pubic hair and related that although the test was "a limited

comparison," itwas heropinion that the hair recovered from the underwear could have come from
Matute because the hair was "microscopically similar" to pubic hair later retrieved from Matute.

Then, Emma Becker explained that she performed DNA testing on the pubic hair recovered from

B.A.'s underwear and revealed that the first test that she performed did not identify Matute as a

contributor but that more sensitive testing that she performed later and that directly looks for Y

chromosomes revealed that the recovered hair "is consistent with the ... profile of Matute and that

Matute could not be excluded as the contributor ofthe DNA.

Finally, after the State rested, Matute elected to testify. In his testimony, Matute

acknowledged that he knew B.A. and that he met her on the day of the alleged assault at a

"washateria" because her boyfriend had asked him to give her a ride to a party. Moreover, he

explained that B.A. kept tryingto get close to him and admittedthat he kissed B.A. on her cheekat

her request, but he insistedthat nothingelse happened. Further, Matutecalled B.A. a liar and said

that "[s]he likesto go with different men." On cross-examination, he admitted that at the time of

the offense, he drove a black car that had car seats in the back for his young children.

Inlightofalloftheevidence summarized above, including thetestimony ofB.A. and

Matute, as well as the reasonable inferencesthat the factfindercould have made from that evidence

and given that the standard of review forlegal-sufficiency challenges obligates appellate courts to

defer to the factfinder's resolution of conflicts in the testimony and to review the evidence in the

light most favorable to the verdict, see Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778;

Hooper, 214 S.W.3d at 16-17; we conclude that the evidence was legally sufficient to support the

district court's judgment of conviction. Accordingly, we overrule Matute's first issue on appeal.
Best Evidence

In his second issue on appeal, Matute contends that the district "court erred in allowing

testimonyregardingan interrogationwithoutrequiringthe Stateto present the best evidencefor that

interrogation." SeeTex. R. Evid. 1002. Specifically,Matute refers to portions of the testimony from

Detective Bonilla in which he described his questioning of Matute and insists that the video of the

interrogationshould have been admitted instead. Moreover, Matute insists that the district court's

ruling was improper because if the video of the interrogation had been admitted, "the jury could

have seen [Matute] repeatedlydenyingthat he committed any crime, despiteBonilla's tactics as an

investigator." Matute argues that he was harmedby the districtcourt's rulingfor the same reason.

We review a trial court's ruling on the admission of evidence under an abuse-ofdiscretion standard of review. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010).

Underthatstandard, a trialcourt'srulingwill onlybe deemedan abuseof discretion if it is so clearly

wrong as to lie outside the zone of reasonable disagreement, Lopez v. State, 86 S.W.3d 228, 230

(Tex. Crim. App. 2002), orisarbitrary orunreasonable, State v. Mechler, 153 S.W.3d 435,439 (Tex.

Crim. App. 2005). Moreover, the trial court'sruling will be upheld provided thatthe trial court's

decision "isreasonably supported bythe record and is correct under any theory oflaw applicable to

the case." Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

When Matute argued during thetrialthatthebestevidence ofwhatDetective Bonilla

said and observed was the video of the interrogation, the district court explained that it was

unnecessary to admit the video because Detective Bonillawas "here testifying." The court ofcriminal

appeals has confronted a similar issue before. See Burdine v. State, 719 S.W.2d 309 (Tex. Crim.
App. 1986), superseded in part on other grounds by rule change as stated in Barnes v. State,

876 S.W.2d 316, 325-26 (Tex. Crim. App. 1994) (explaining that Rules ofEvidence 401, 402, and

403 were modified since holding in Burdine). In Burdine, Burdine argued that "his oral statement

made to police officers should not have been admitted in evidence, because the statement was

offered in the form of the officers' testimony rather than the tape recording made at the time the

statement was given." Id. at 318. Although the court decided that the best-evidencerule in effect

at the time did not apply to electronic recordings, it also commented that even if it did, Burdine's

claim would not be sustained because the issue was "the contents of the conversation on the

recording, and not the recording itself. Since [the police officer] participated in the conversation,

histestimony describing theinterrogation wassufficient forbestevidence purposes." Id. at 318n.5.

More recently, our sister court of appeals issued an opinion agreeing with the

reasoning inBurdine. See Cox v. State, No. 05-11-00687-CR, 2012 Tex. App. LEXIS 5380 (Tex.

App.—Dallas July 9, 2012, pet. dism'd) (notdesignated for publication). In Cox, Cox argued that

the trial court erred by allowing a witness to testify regarding events that he "observed on the

closed-circuit television monitor when... the best evidence was a video recording ofthe events that

hadbeengenerated bythe closed-circuit television monitoring system." Id. at *3-4. However, the

court determined that the witness:

testifiedconcerning what he observed on the closed-circuit television monitor as it

occurred.. . . That events observedby [the witness] on the closed-circuit television

monitor couldhavebeen copied to a compact disc and preserved doesnot alter the

fact that .[the witness] testified concerning what he observed in real time. [The

witness]'s testimony regarding his observations of the events as they occurred as

depicted on the closed-circuit television monitor is not testimony regarding, or

dependent upon, a videotape recording.
Id. at*9-10.

In addition, federal courts interpreting the federal version of the best-evidence rule

have reached similarresults. See Fed. R. Evid. 1002 (requiring original recording "in order to prove

its content unless these rules or a federal statute provides otherwise"); see, e.g., United States v.

Bennett, 363 F.3d 947, 953 (9th Cir. 2004) (concluding that witness's testimony when he did not

observe alleged actions violated best-evidence rule and noting that rule applies when witness seeks to

testify about contents ofrecording, particularly where witness was not privy to events on recording);

United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996) (explaining that "a tape recording

cannot be said to be the best evidence of a conversation when a party seeks to call a participant in or

observer ofthe conversation to testify to it. In that instance, the best evidence rule has no application

at all"); United States v. Fagan, 821 F.2d 1002, 1009 n.l (5th Cir. 1987) (characterizing as

"completely without merit" best-evidence argument that sheriff should not testify regarding his

recollection of interview because interview was taped and stating that rule was inapplicable

where prosecution was trying to prove contents of conversation rather than contents ofrecording);

United States v. Gonzales-Benitez, 537 F.2d 1051, 1053-54 (9th Cir. 1976) (noting that argument

that tape recording of conversation should have been introduced instead of allowing participant to

testify was puzzling and misconstrued purpose of best-evidencerule and explaining that although

tape recordingwould have been admissible as evidenceof conversation, "testimonyby participants

was equally admissible and was sufficient to establish what was said").

In light of this authority, we cannot conclude that the district court abused its

discretion byoverruling Matute's best-evidence objection during trial orbyallowing DetectiveBonilla

10
to testify without requiring the State to introduce the video of the interrogation. Accordingly, we

overrule Matute's second issue on appeal.

CONCLUSION

Having overruled Matute's two issues on appeal, we affirm the district court's

judgment of conviction.

David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: November 26, 2014

Do Not Publish

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