# /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 OFCRIMINALAPPEALS

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 COURTOFCRIMINALAPPEALS 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. TexasTable 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 11p 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



### ' 1 6 *'• 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.



### £TIssues '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.



## 7In 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 ofharm 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.)


### \0There 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 ofTexas, 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 

### penetratingthe child's sexual organ. SeeTex. Penal Code §22.021(a)(1)(B), (a)(2)(B). Atthetime of thealleged offense, Matutewasinhistwenties, andthevictim, B.A., waselevenyears old. After 

### atrial, thejuryfound Matute guilty and assessedhispunishmentat 30years' imprisonment. See id. §§ 22.021(e) (providing thatoffense isfirst-degree felony), 12.32 (setting outpunishmentrange for first-degree felony). Intwo issues onappeal, Matutechallenges thelegal sufficiencyoftheevidence 

## supporting his conviction and asserts that the district court erred byallowing awitness totestify "regarding an interrogation without requiring the State to present the best evidence of that interrogation." We will affirmthe district court's judgment ofconviction. Legal Sufficiency ofthe Evidence 

### In hisfirst issue onappeal, Matute challenges thelegal sufficiency of theevidence 

## supportinghis conviction. As setoutabove, Matutewas chargedwith aggravated sexual assaultofa child. Under the Penal Code, an individual commits that offense ifhe "intentionally or knowingly



### ... causes the penetration ofthe anus or sexual organ ofa 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 "anyrational 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 

### dutytoweightheevidence, toresolve 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.3d9, 

### 16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume thatconflicting 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). 

### Duringthetrial, B.A., B.A.'smother, various law-enforcementpersonnel, andMatute 

### alltestifiedregarding thealleged 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 beendiagnosed withvarious learning disabilities. Regarding the offense, she 

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

## gotteninto "ablackcar" with aman. In addition, J.R. relatedthatwhen she scannedthe callhistory forhercellphone, shenoticedthatB.A. hadusedthephoneto call someone, and she statedthat sherepeatedly called the number to find out ifthe person knew where B.A. was and gave the number 

### to the police. Moreover, she testifiedthat during one ofthe calls, a man answeredbut 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. finishedher testimony, B.A. was calledto the stand. Inhertestimony, 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 thephone,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 ofthe 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 behindsomeapartments, and shedescribedthepositionsof 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 

### therewerepoliceofficers presentwhen shereturnedhome,and that she directedone of theofficers 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 andidentifiedhim 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 ofthe 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. AfterOfficer Szimanski concludedher testimony, the sexual-assaultnurse examiner 

### thatexaminedB.A.,KathleenGann,testifiedregardingtheeventsthatoccurredafterOfficerSzimanski 

### droveB.A.to thehospital. In hertestimony, GannrecalledwhatB.A. toldherof theevents, 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 hadhappened, 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 shetalked to the prosecutors, but she laterexplained that she did notremember that when 

## theprosecutors initiallyquestionedher. Inaddition, Matute questionedB.A. regarding whethershe 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 ofthe 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 andregarding testing that was done onthe evidence collected. First, Detective Brent Kelly testified that after obtaining phone records for J.R.'s cell phone, he 

### learned that thephone number thatJ.R. called after B.A. wentmissing wasregistered to aphone 

### belongingtoMatute. Moreover, DetectiveKellyexplainedthatthephonerecords showedthat several calls were madebetween Matute'sphone and J.R.'s phone in thedays leading up to the incident. In addition, Detective Trent Watts related that Matute had that phone on him when he was 

## questioned bythe police. Further, Detective Peter Bonilla stated that when hewas questioning him, Matute admitted that he owned ablack Toyota Corolla, that heknew B.A., and that she got into his car. 

## Regarding testing performed onthe evidence, Tyler Belknap stated that he tested the condom wrapper for latent fingerprints. Before discussing the results ofthe testing, Belknap
5

### recalledthatwhenhe obtainedfingerprints from Matute, "there was some sortofinjuryto all of[his] 

### fingers" and that injuries "impairthe analysis and comparisonprocess." In lightofthis 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 ofinjury 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 onbiological samples takenfrom B.A. and Matute after the alleged offense. First, SapanaPrajapati testifiedthatswabs takenof B.A.'sexternal 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 shetested pieces of haircollected from B.A.'sunderwear. Specifically, she stated thatthe hairappeared to be pubic hairand related that although the testwas "a limited 

## comparison," itwas heropinion thatthe hairrecovered from the underwearcouldhave 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 consistentwith the ... profile ofMatute 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 thatB.A. kept tryingto get close to him and admittedthat he kissed B.A. on her cheekat herrequest, but he insistedthat nothingelsehappened. Further, Matutecalled B.A. a liar and said 

### that "[s]he likesto go withdifferent men." Oncross-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 summarizedabove, includingthetestimonyofB.A. and Matute, as well as the reasonable inferencesthat the factfindercould have made from that evidence 

### andgiven that thestandard ofreview forlegal-sufficiency challenges obligates appellate courts to defer to the factfinder's resolution ofconflicts in the testimony and to review the evidence in the 

### light most favorable to the verdict, seeJackson, 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 tosupport the district court'sjudgment ofconviction. Accordingly, we overrule Matute's first issue onappeal.Best Evidence

### In his second issue on appeal, Matute contends that the district "courterred 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 beenadmitted, "the jury could have seen [Matute] repeatedlydenyingthat he committed any crime, despiteBonilla's tactics as an 

### investigator." Matuteargues that he was harmedby the districtcourt's rulingfor the samereason. We review a trial court's ruling on the admission ofevidence under an abuse-ofdiscretion standard ofreview. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). 

### Underthatstandard, a trialcourt'srulingwill onlybe deemedan abuseofdiscretionif it is so clearly 

### wrong as to lie outside thezone ofreasonable disagreement, Lopez v. State, 86 S.W.3d 228, 230 

### (Tex. Crim. App. 2002), orisarbitraryorunreasonable, Statev. Mechler, 153 S.W.3d435,439 (Tex. Crim. App. 2005). Moreover, the trial court'sruling will beupheld provided thatthetrial court's decision "isreasonably supportedbythe record and iscorrectunderanytheory oflaw applicable to the case." Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). 

### WhenMatute arguedduringthetrialthatthebestevidence ofwhatDetectiveBonilla said and observed was the video of the interrogation, the district court explained that it was 

## unnecessaryto admitthevideobecauseDetectiveBonillawas "heretestifying." Thecourtof criminal 

## appeals has confronted asimilarissue before. SeeBurdine 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). InBurdine, 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 ofthe 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, 

### histestimonydescribing theinterrogation wassufficientforbestevidencepurposes." Id. at318n.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). InCox, Cox argued that the trial court erred by allowing a witness to testify regarding events that he "observed on the closed-circuittelevisionmonitor when... the best evidence was a video recording ofthe events that 

### hadbeengeneratedbytheclosed-circuittelevision monitoring system." Id. at *3-4. However, the
court determined that the witness: 

### testifiedconcerning what he observed on theclosed-circuit television monitor as it occurred.. . . That events observedby [the witness] on the closed-circuit television 

### monitor couldhavebeencopied to acompact disc andpreserved doesnot alter the 

### fact that .[the witness] testified concerning what he observed in real time. [The witness]'s testimony regarding his observations ofthe events as they occurred as 

## depicted on the closed-circuit television monitor is not testimony regarding, or dependent upon, a videotaperecording.Id. at*9-10. 

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

### have reached similarresults. See Fed. R. Evid. 1002 (requiring original recording "in orderto 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 allegedactions violatedbest-evidencerule and noting that rule applies when witness seeks to 

### testify about contents ofrecording, particularlywhere 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 cannotbe said to be the best evidence ofa conversation when aparty seeks to call aparticipantin or 

### observerofthe conversationto testify to it. In that instance, the best evidencerule 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 ofconversation should have been introduced instead ofallowing participant to 

### testify was puzzling and misconstrued purpose of best-evidencerule and explaining that although tape recordingwould have been admissible as evidenceofconversation, "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 

### discretionbyoverrulingMatute'sbest-evidenceobjectionduringtrial orbyallowingDetectiveBonilla

10

### to testify without requiring the State to introduce the video ofthe 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 ofconviction.



### David Puryear, Justice Before Justices Puryear, Pemberton, and Field Affirmed Filed: November 26, 2014 Do Not Publish

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