Fowler v. State

517 S.W.3d 167

Jamel McLelland FOWLER, Appellant

v.The STATE of Texas, Appellee

No. 06-16-00038-CR

Court of Appeals of Texas, Texarkana.

Date Submitted: October 6, 2016

Date Decided: March 17, 2017

Jessica Edwards, Attorney at Law, Greenville, TX, for appellant.

George C. Grogan, Steven Lilley, Assistant District Attorney, Noble D. Walker Jr., Hunt County District Attorney, Greenville, TX, for appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Moseley

Jamel McLelland Fowler was convicted of theft of a Kawasaki mule all terrain vehicle (ATV) valued at $1,500.00 or more, but less than $20,000.00.¹ On appeal,² Fowler challenges the sufficiency of the evidence, claims error in the admission of extraneous offense evidence, and claims reversible error by the trial court in admitting an unauthenticated video exhibit into evidence. While we find the evidence sufficient to sustain Fowler's conviction, we also find that the trial court reversibly erred in admitting an unauthenticated video exhibit into evidence; consequently we reverse the trial court's judgment and remand to the trial court for a new trial.

I. Trial Court Proceedings

In 2014, Fowler was charged by three separate indictments with three separate crimes. In the indictment which led to the conviction on appeal in this matter, Fowler was accused of stealing the ATV from Paul Blassingame. The other two indictments alleged burglaries of buildings. In one of the other charges, Fowler was accused of breaking into a building owned by William Martin and stealing various items (Burglary Case No. 1);³ in the other, Fowler was charged with burglarizing a building and stealing a trailer (Burglary Case No. 2).⁴ All three indictments were returned in Hunt County. The State moved to try the cases together, alleging that they "constitute[d] the same criminal episode because they [were] the repeated commission of similar acts." Fowler did not oppose consolidation of the three cases.

II. The Evidence

The facts of the three alleged offenses are intertwined and will have some bearing on the issues Fowler presents in this appeal. As previously stated, this appeal is of Fowler's conviction of the theft of the ATV. Blassingame testified that the ATV had been located on property he owned in Hunt County, which he visited often. In November 2014, he went to that property, where he discovered that the ATV was missing, a fact that he duly reported to the Hunt County Sheriff's Office as a theft. Law enforcement officers in Royse City of neighboring Rockwall County found the ATV on December 6, 2014, while investigating a burglary at a concrete supply business. The ATV was identified by its vehicle identification number and returned to Blassingame.

The ATV was found hidden in a wooded area beyond a field on property owned by Lattimore Materials,⁵ a ready-mix concrete business that had suffered a series of burglaries over the months preceding the discovery of the ATV. While investigating one of the burglaries that occurred at Lattimore Materials in December 2014, Royse City policemen noticed tire tracks (which they believed were made by an ATV) which led from the building that had been burglarized to a tree line; just beyond the tree line was the copse of trees in which the ATV was hidden. There was trash scattered on the ground around the ATV, among which was a receipt from a Family Dollar store that included the time and date of its issuance. Further, within fifteen feet or so of the ATV, the policemen found packaging in which a box cutter had been located, and a box cutter was one of the items listed on the Family Dollar store receipt. Royse City Police Officer Jaime Torrez took the receipt to the store that had issued it and was able to view the store's surveillance video recording showing what appeared to be the purchase memorialized by the receipt. The store was unable to duplicate the recording or render it to a format Torrez could take with him, so he and an officer he was training used Torrez' department-issued camera to record the surveillance footage as it played on the store's video monitor. The footage's date and time information corresponded generally to the date on the receipt. Particularly of note to the State's case, the recording showed a man entering the store then completing a purchase, and it was the State's theory at trial that that man was Fowler.

In addition to those circumstances, in the weeks leading up to the December discovery of Blassingame's ATV, officers had found a blue Nissan Xterra vehicle in the area under suspicious circumstances. On November 3, 2014, at about 1:45 a.m., Royse City Police Sergeant Ryan Curtis and Rockwall County Deputy Brad Dick found the truck parked on a dirt road behind some industrial businesses in a poorly lit area.⁶ Virginia Cox (eventually named as a co-defendant with Fowler in one or more of his indictments) was sitting in the Xterra. Cox's explanation to the law enforcement officers of her whereabouts was that she and her boyfriend had run out of gasoline and that he had gone back to a gas station for fuel. Because one of the businesses (Four Brothers, a mower and tractor dealer) behind which Cox's vehicle was parked had been the victim of multiple burglaries in the past, Curtis was suspicious of Cox. Curtis saw several sets of bolt cutters in the Xterra⁷ and got another police officer to go to the nearest gas station. That officer encountered no one purporting to be in search of gasoline for a stalled vehicle. When Curtis asked Cox to attempt to start the vehicle, it started with no problem (thereby casting doubt on Cox's story that it had no fuel).

At about 6:00 a.m. that same day, Royse City Police Officers William Potter and Tim West observed the same blue Xterra in another part of Royse City parked on the side of a local county road. As previously, the vehicle was occupied only by Cox, and when she was questioned by the policemen, she made reference once again to a male companion. Later that morning, Potter and West again encountered the Xterra, this time containing both Cox and Fowler. Between these two encounters, Potter had responded to a call regarding an alleged theft at the Four Brothers mower and tractor dealership. The dealership representatives called Potter's attention to three mowers, each of which had their gasoline caps removed and none of which held any gasoline in their tanks.⁸

After that, Potter returned to the Xterra and questioned Fowler about involvement in any theft of gasoline, which Fowler denied. From our reading of the record, Potter took no further action with respect to Fowler after that point.⁹ There was another encounter between West and Potter, on the one hand, and Fowler and Cox, on the other, on either November 3 or 10 wherein Fowler allowed the officers to look inside the Xterra. At that time, the officers noticed that there were three bolt cutters, binoculars, and a pry bar inside the vehicle. When questioned about those items, Fowler attempted to explain the presence of the tools in his vehicle by saying he was an electrician. That explanation failed to quell West's suspicions of Fowler because (as West explained) he ran a construction company and was aware of the tools and equipment used by electricians, and those items would not ordinarily be used by electricians.¹⁰ This encounter occurred near Lattimore Materials, which had suffered multiple recent burglaries.

Testimony about the burglaries at Lattimore Materials revealed that a part of the method of operation of the burglars was to sever cables or heavy wires and remove them from the site. In addition, the burglars had cut padlocks on the gates of the premises more than once. While investigating one of the burglaries, Torrez found three sets of bolt cutters near some of the cut cables, and he suspected that the bolt cutters had been used to cut the cables.

III. Store's Surveillance Video Insufficiently Authenticated

Fowler contends that because the video surveillance footage from the Family Dollar store was not properly authenticated, the trial court erred by admitting it into evidence. We agree.

The challenged video recording was a copy of another recording from a surveillance camera at the Family Dollar store. The Family Dollar store receipt found by Torrez near the stolen ATV evidencing the sale of a box cutter (the packaging of which had likewise been found near the ATV) revealed the time and date of its issuance. Torrez took the receipt to the issuing Family Dollar store and discovered that the store had a surveillance video recording from the date and time the receipt was issued. The State maintains that the surveillance video recording captured the image of a man the State alleged to be Fowler entering the Family Dollar store a few minutes before the time and date set out on the receipt found by Torrez near the ATV, then, several minutes later, buying items. However, the video made by the Family Dollar store was not saved in a format that could be copied, so Torrez (and another officer who was accompanying him) focused Torrez' police-department-issued video camera on the screen displaying the Family Dollar video and made a video recording of a portion of the Family Dollar surveillance video. The fact that the challenged video recording is a recording of a recording is not the problem which must be addressed. A problem, however, exists because there is no evidence that the original video recording portrayed what the State maintains that it depicts.

"To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." TEX. R. EVID. 901(a). "Video recordings or motion pictures sought to be used in evidence are treated as photographs and are properly authenticated when it can be proved that the images reflect reality and are relevant." Cain v. State , 501 S.W.3d 172, 174 (Tex....