                                  IN THE
                          TENTH COURT OF APPEALS

                              No. 10-11-00256-CR

WILLIAM JOHNSON,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee



                          From the 12th District Court
                             Walker County, Texas
                             Trial Court No. 25,166


                          MEMORANDUM OPINION


      A jury convicted Appellant William Johnson of the second-degree felony offense

of delivery of a controlled substance, and the trial court assessed his punishment,

enhanced by prior felony convictions, at forty years’ imprisonment.     This appeal

ensued. We will affirm.

                                 BACKGROUND

      Walker County Sheriff’s Detective Daniel Barrett was doing surveillance on a

house where Johnson was living when Jerrod Bridges visited the house. Detective
Barrett stopped Bridges after he left the house and found narcotics on him. Bridges

then agreed to work with the sheriff’s department by purchasing crack cocaine from

Johnson.

        The next day, Detective Barrett met Bridges, searched Bridges and his car,

outfitted Bridges with two recording devices (one audio and one audio/video), and

told Bridges to arrange to buy five crack cocaine rocks from Johnson for $100. Bridges

drove to Johnson’s residence while Detective Barrett followed. Once at the residence,

Bridges approached the back door and then went inside. Detective Barrett watched

from an unmarked car on the side of the street.          Bridges was in the house for

approximately two minutes. Bridges then exited the house, got into his vehicle, and

drove immediately to a debriefing location. Detective Barrett again followed.

        Once at the debriefing location, Detective Barrett stopped the recording devices,

searched Bridges and his car again, and secured five crack cocaine rocks. Bridges

testified that he bought the five crack cocaine rocks from Johnson. The audio/video

recording of the controlled-buy was admitted as State’s Exhibit 1.

                            MOTION FOR CONTINUANCE

        In his first issue, Johnson contends that the trial court denied him due process

when it denied his motion for continuance, which was filed on the morning of trial after

additional discovery material, including the criminal history of the witness alleged to

have received the delivery of the controlled substance (Bridges), was provided on

Friday afternoon before the start of trial on Tuesday morning.




Johnson v. State                                                                   Page 2
        Johnson filed a motion for continuance on March 22, 2011 (the first day of trial),

which provided as follows: To comply with the Standing Discovery Order in Criminal

Cases, the State was required to furnish all known convictions that were admissible for

impeachment concerning any of the State’s proposed witnesses and all exculpatory

evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),

by December 20, 2010. Johnson was provided with “the extensive criminal history” of

Bridges “late on the afternoon of Friday, March 18, 2011,” and he believed that several

other witnesses listed by the State might also have extensive criminal histories. His

failure to request the continuance would waive any Brady violation, as well as any

violation of a discovery order, and the motion for continuance was not made for

purposes of delay but that justice might be done.

        The trial court conducted a hearing on the motion, at which Johnson asked for a

continuance “because if we do not ask for continuance at this point, then we waive our

Brady material and any violation of discovery orders will also be waived.” The State

replied that the criminal history provided to the defense during the week prior was not

that of a confidential informant but that of the man named in the indictment who

allegedly bought the controlled substance from Johnson. The State also stated that it

had no intention of calling any of the other people on the witness list except police

officers and DPS employees at the lab. The trial court denied the motion.

        The denial of a motion for continuance is within the sound discretion of the trial

court, and we review a trial court’s denial of a motion for continuance for an abuse of

discretion. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006); Janecka v. State,

Johnson v. State                                                                      Page 3
937 S.W.2d 456, 468 (Tex. Crim. App. 1996). An appellant claiming erroneous denial of

a motion for continuance must show (1) the trial court erred in denying the motion for

continuance, and (2) such denial harmed him in some tangible way. Gonzales v. State,

304 S.W.3d 838, 843 (Tex. Crim. App. 2010).

        A prosecutor has an affirmative duty to turn over material, favorable evidence to

the defense. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97; Little v. State, 991 S.W.2d 864, 866

(Tex. Crim. App. 1999). Impeachment evidence, as well as exculpatory evidence, is

included within the scope of the Brady rule. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim.

App. 2000). To determine whether a prosecutor’s actions violate a defendant’s due-

process rights, we employ a three-part test.         Id.   We consider whether:       (1) the

prosecutor failed to disclose evidence; (2) the evidence is favorable to the accused; and

(3) the evidence is material (i.e., whether a reasonable probability exists that the result of

the proceeding would have been different if the evidence had been properly disclosed

to the defense). Id.; Little, 991 S.W.2d at 866. When the disclosure of evidence occurs at

trial (or, as here, several days before trial), the issue becomes whether the tardy

disclosure prejudiced the defendant. See Little, 991 S.W.2d at 866. If the defendant

received the material in time to use it effectively at trial, his conviction should not be

reversed just because it was not disclosed as early as it should have been. Id.

        Here, on direct examination, Bridges testified that he had previously been

convicted of theft as well as two other felonies in 1999 and 2000, respectively. During

cross-examination the next day, Johnson also questioned Bridges about his criminal

history. Bridges testified that he had been convicted of a felony in February 2000;

Johnson v. State                                                                        Page 4
convicted of theft in September 2001, June 2002, October 2009, and October 2010; and

convicted of possession of narcotics in 2010. During closing argument, Johnson again

emphasized Bridges’s criminal record:

               But I want to talk about, we’ve talked a lot about the confidential
        informant, the criminal source, whatever you want to call Mr. Bridges. I
        can’t think of a better example of somebody that has motive to tell a story
        one way or another. He’s just gotten stopped for possessing and he’s
        found with drugs in his car or on his person the day before. Officer
        Barrett or Detective Barrett says that he followed him and stopped him for
        a traffic violation and searched him. He found drugs on him. Mr.
        Bridges, voluntarily he comes up, hey, you know, please don’t do
        anything to me, you know, I’ll do, you know, I’ll testify. I’ll be your
        snitch. He volunteered. The police didn’t approach him, he was, hey,
        take me. He wanted to save his own tail. These are the things that you
        have to look at when you’re assessing the reliability of this witness. What
        did he have to gain?

               We’re getting into word games when we say we didn’t make any
        promises or there’s nothing concrete. You can bet your bottom dollar Mr.
        Bridges was doing this for a reason. He knew that he had a better shot of
        not getting another conviction or not more charges pressed on him if he
        came up with something for the cops, motive, incentive. Can we believe
        this guy?

               [Defense co-counsel] asked Mr. Bridges about his record, his
        criminal record. He was convicted of theft on October 15, 2010; then we
        have the May 2010. We know that Detective Barrett found drugs on him
        then. Then we have a bunch of thefts from 2001 to 2009 and then we have
        some other felony -- Mr. Bridges didn’t testify what that was -- in 2000.
        He’s been through the system, he knows what its [sic] going to take to
        save his own tail.

        It is apparent from this record that the evidence was turned over in time for

Johnson to use it adequately in his defense. Thus, assuming without deciding that the

failure to disclose the evidence until several days before trial would constitute a Brady

violation, we conclude that Johnson has made no showing that he was prejudiced by


Johnson v. State                                                                      Page 5
the tardy disclosure of the information. See id. (“We have indicated that, if the evidence

was turned over in time for the defendant to use it in his defense, the defendant’s Brady

claim would fail.”). Accordingly, we conclude that the trial court did not abuse its

discretion in denying Johnson’s motion for continuance based on the alleged Brady

violation. See Gonzales, 304 S.W.3d at 843.

          Furthermore, assuming without deciding that the State violated the Standing

Discovery Order,1 Johnson has not shown that the violation harmed him in some

tangible way. Johnson states in his brief:

          In failing to grant the requested continuance, the trial court violated
          Appellant’s right to due process, denied him the opportunity to further
          investigate the existence of material impeachment evidence, and allowed
          the State of Texas an advantage in the trial of this matter by endorsing the
          State’s failure to timely disclose valuable impeachment evidence
          regarding the sole witness capable of testifying to Appellant’s actions that
          formed the basis of the indictment in this matter.

But this bare assertion is insufficient to show harm.

          To show that the trial court abused its discretion in refusing to grant a motion for

continuance, Johnson must have established “specific prejudice to his cause arising

from the trial court’s failure to continue the trial.” See Heiselbetz v. State, 906 S.W.2d 500,

511-12 (Tex. Crim. App. 1995). Ordinarily, a defendant develops the evidence showing

how he was harmed by the trial court’s denial of a requested continuance during a

hearing on a motion for new trial. Gonzales, 304 S.W.3d at 842-43. Although Johnson

filed a “Motion for New Trial and Motion in Arrest of Judgment,” this motion does not

assert the trial court’s denial of his request for a continuance as a basis for the trial court

1   The Standing Discovery Order is not part of the record on appeal.

Johnson v. State                                                                         Page 6
to grant a new trial. Additionally, we find no indication that the trial court conducted

an evidentiary hearing on Johnson’s motion for new trial. Thus, Johnson did not show

that the denial of his motion for continuance harmed him in some tangible way. We

conclude then that the trial court did not abuse its discretion in denying Johnson’s

motion for continuance, and we overrule his first issue. See Gonzales, 304 S.W.3d at 843.

                                 AUTHENTICATION

        In his second issue, Johnson contends that the trial court abused its discretion

“when it allowed the admission of State’s Exhibit 1 over the predicate objection of

counsel for Appellant.”

        On March 22, 2011, the State attempted to admit State’s Exhibit 1, an

audio/video recording of the controlled buy. Detective Barrett testified as follows: the

recording came from a camera that he had placed on Bridges; the camera was capable of

making an accurate recording; Barrett was competent in operating it; he had watched

the recording; he recognized the voices on the video; the voices, other than his own,

belonged to Detective Davila, Bridges, and Johnson; the video had not been altered; and

the video still looked and sounded the way it did the first time he saw it. The State then

tendered the exhibit to defense counsel. Johnson objected to the admission of the

exhibit, stating “Detective Barrett hasn’t laid any kind of foundation as to how he can

tell the voice of my client or anyone else on this video. There was no foundation for

that whatsoever.” The trial court sustained Johnson’s objection.

        Immediately thereafter, Detective Barrett testified: he had heard Johnson speak

on numerous occasions and recognized Johnson’s voice on the recording; he had had

Johnson v. State                                                                    Page 7
only two conversations with Bridges but recognized his voice; he recognized his own

voice; and he recognized Detective Davila’s voice from working with him and regularly

talking to him. Johnson then took Detective Barrett on voir dire. During Johnson’s

questioning, Detective Barrett said that although he is not an expert on voice

recognition and he had only heard Bridges voice on the day before the recording was

made, he knew Bridges’s voice from that meeting. Detective Barrett also stated that he

had heard Johnson’s voice several times on different recordings. At that time, Johnson

then stated that he was still going to object. The trial court overruled the objection and

admitted State’s Exhibit 1.

        The State then attempted to publish the recording to the jury; however, the

recording was apparently of poor quality. The following exchange took place:

               [Defense Counsel]: Judge, I renew my objection under 901 that we
        can’t authenticate this video under 901 given the condition, the voices are
        all over, the tape’s all over. I don’t really think they can verify this.

                   THE COURT: That’s sustained.

               [Defense Counsel]: I’d like to move that this video be stricken,
        taken out.

                   THE COURT: That’s sustained.

              [Prosecutor]: It’s not the actual video, it’s the quality of the
        equipment that we’re using.

              THE COURT: Yeah, I understand. It’s not usable because of the
        sound quality is such at least as played it’s of no benefit to the jury in this
        case.

              [Defense Counsel]: Can I have an instruction to the jury to
        disregard anything they have seen or heard?


Johnson v. State                                                                          Page 8
               THE COURT: If they have seen or heard anything if they can,
        they’re to disregard it.

        ....

                   (Outside the presence of the jury, open court, defendant present).

                   (CD played.)

              [Prosecutor]: Judge I would say by the fact that you can hear
        through all the sound problems that’s all the people involved, Barrett and
        [Johnson] and the other guy, that’s the way they talk.

                   THE COURT: What else am I going to hear?

                   [Prosecutor]: At this point I think it’s over with, it’s just driving
        back.

                THE COURT: At this time the objection to the introduction of
        State’s 1 and publishing it to the jury is sustained.

        The next day, the State again attempted to admit State’s Exhibit 1. Detective

Barrett testified that State’s Exhibit 1 is an audio/video recording of a control-buy done

on May 4, 2010; it was recorded on an audio/video recording device or DVR recorder;

the device is capable of making an accurate recording, and he is competent in operating

the device; he has seen the video recording and listened to the voices on the disk; he

recognizes all the voices on the disk; they are Johnson’s, Detective Davila’s, Bridges’s,

and his own; the video did not appear to be altered in any way; and the actual content

from the exhibit the day before appeared to be the same. The State then tendered the

exhibit to defense counsel. The following exchange took place:

              [Defense counsel]: I’m going to renew my objection under 901
        through the questioning yesterday and today. I think Detective Barrett is
        no more of an expert in analyzing those voices than anyone here.


Johnson v. State                                                                           Page 9
                 [Prosecutor]: I don’t believe the rules contemplate a need for
          expert voice recognition.

                 THE COURT: The objection is overruled. Assuming this machine
          plays it. State’s 1 is admitted.

The State then published the exhibit to the jury without further objection.

          We review a trial court’s admission of evidence for an abuse of discretion. See

Druery v. State, 225 S.W.3d 491, 502-03 (Tex. Crim. App. 2007). A trial judge does not

abuse its discretion if it “reasonably believes that a reasonable juror could find that the

evidence has been authenticated or identified.” Id. at 502.

          Texas Rule of Evidence 901 governs the authentication of evidence. See TEX. R.

EVID. 901. It states: “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.” TEX. R. EVID. 901(a). Rule 901(b)

provides a nonexclusive list of methods for authenticating evidence. See TEX. R. EVID.

901(b).     Rule 901(b)(5) states that a voice, whether heard firsthand or through

mechanical or electronic transmission or recording, may be identified “by opinion

based upon hearing the voice at anytime under circumstances connecting it with the

alleged speaker.”      TEX. R. EVID. 901(b)(5).   Based on the record as detailed above,

Detective Barrett’s testimony was sufficient to identify the voices on the recording. See

id.

          Johnson also cites in his brief subsections (1) and (4) of Rule 901(b) and states

broadly, “In the testimony provided by Barrett on both March 22 and March 23, none of

the authenticity requirements for the admission of State’s Exhibit 1 under Rule 901 are

Johnson v. State                                                                    Page 10
met.” But Johnson’s objection at trial was limited to Detective Barrett’s identification of

the voices on the recording. Therefore, the part of Johnson’s complaint on appeal that is

broader than that made at trial is not preserved for review. See TEX. R. APP. P. 33.1(a);

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (“[T]he point of error on

appeal must comport with the objection made at trial.”).

        For these reasons, the trial court did not abuse its discretion by admitting State’s

Exhibit 1 into evidence, and we overrule Johnson’s second issue.

                                      CONCLUSION

        Having overruled both of Johnson’s issues, we affirm the trial court’s judgment.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed May 30, 2012
Do not publish
[CRPM]

*      (Chief Justice Gray concurs in the judgment to the extent it affirms the trial
court’s judgment. A separate opinion will not issue.)




Johnson v. State                                                                     Page 11
