Affirmed and Memorandum Opinion filed November 6, 2018.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-18-00213-CR

                    JAMES CHRISTIAN SHORES, Appellant
                                           V.
                        THE STATE OF TEXAS, Appellee

       On Appeal from the County Court at Law No. 2 & Probate Court
                          Brazoria County, Texas
                       Trial Court Cause No. 228573

                   MEMORANDUM OPINION
      Appellant James Christian Shores appeals his conviction for the offense of
terroristic threat. In a single issue, appellant contends that the trial court reversibly
erred by admitting the audiotape of a 911 call over appellant’s objection that it was
not properly authenticated.

      Concluding that the audiotape was properly authenticated, we affirm.
                                        Background

      Complainant Greta and another woman, Ruth, worked for MWS
Management, an apartment management company.1 MWS sued to evict appellant
for nonpayment of rent; Ruth and Greta appeared at the eviction hearing on MWS’s
behalf. The trial court held against appellant, ordering him to vacate his residence.
Following the proceeding, appellant briefly spoke with Greta in the courthouse
parking lot. Appellant asked Greta if she would accept money for appellant’s past-
due rent, but Greta was not authorized to accept money.

      After the interaction in the parking lot, Greta and Ruth drove away. Greta
testified that appellant followed her, driving closely behind Greta’s car. According
to Greta, she turned into a McDonald’s parking lot, “hoping that [appellant] would
keep going.” However, appellant also turned into the McDonald’s parking lot. Greta
testified that appellant pulled up behind her, got out of his vehicle, started yelling,
and threatened to “kill her.” Ruth, who was also in Greta’s vehicle, testified that she
was terrified and told Greta to “go, go, go.” Greta drove away, but appellant
followed them again. Ruth called 911. Ruth and Greta heeded the 911 operator’s
advice and drove to a nearby police station. At that point, appellant stopped
following them.

      The Brazoria County District Attorney charged appellant by information with
the offense of terroristic threat.2 The State alleged that appellant threatened to
assault Greta with the intent to place Greta in fear of imminent serious bodily injury.
Appellant pleaded not guilty, and the case proceeded to trial.           During Ruth’s
testimony, the State moved to introduce the audiotape of the 911 call. The following


      1
          We refer to the complainant and her colleague by pseudonyms.
      2
          See Tex. Penal Code § 22.07(a).

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exchange took place regarding admission of the 911 tape:

      [Prosecutor]: On the 911 phone call did you describe events as they
      were occurring?
      [Ruth]: Yes.
      [Prosecutor]: Your Honor, may I approach the witness?
      THE COURT: Yes, you may.
      [Prosecutor]: Ma’am I’m showing you what has been marked as State’s
      Exhibit 1. Now, without going into its contents, do you recognize this?
      [Ruth]: Yes, I do.
      [Prosecutor]: And what is this?
      [Ruth]: That is the 911 call that I listened to this morning, and I signed
      my initials there.
      [Prosecutor]: So, you have had an opportunity to listen to this recording
      before?
      [Ruth]: Yes, just this morning.
      [Defense Counsel]: Your Honor, I would like to take the witness on
      voir dire.
      THE COURT: Not yet.
      [Prosecutor]: And are these your initials on the disk?
      [Ruth]: Yes, they are.
      [Prosecutor]: And to your knowledge is this a fair and accurate
      depiction of the 911 call that you made on that day?
      [Ruth]: Yes. Yes, it was.
      [Prosecutor]: Your Honor, at this time permission to publish to the
      jury?
      THE COURT: Well, you’ve got to offer -- offer it and tender.
      [Prosecutor]: State offers State’s Exhibit 1 after tendering to opposing
      counsel.
      [Defense counsel]: I would like to take the witness on voir dire.
      THE COURT: All right.


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                             Voir Dire Examination
      [Defense counsel]: [Ruth], did you make this disk?
      [Ruth]: No.
      [Defense counsel]: Do you have any way of knowing whether it was a
      true and correct copy of what was said during your conversation?
      [Ruth]: I remember that that is what was said. Is that what you’re
      asking?
      [Defense counsel]: Do you know whether or not this has been changed
      in any way, shape, form, or fashion?
      [Ruth]: No, it hasn’t been changed.
      [Defense counsel]: How do you know it hasn’t been changed?
      [Ruth]: Because I made the call.
      [Defense counsel]: You made the call, but you didn’t make the
      recording. Is that correct?
      [Ruth]: Correct.
      [Defense counsel]: Your Honor, I would object to it being entered.
      There’s been no predicate laid that this is an accurate recording of the
      911 call or that it hasn’t been changed.
      THE COURT: I think that’s exactly what she testified to under his
      direct, that it was a true and accurate recording. She doesn’t have to be
      the one that recorded it. She listened to it and authenticated it as her
      conversation. So, that’s overruled.
      [Prosecutor]: Permission to publish to the jury, Your Honor?
      THE COURT: Yes, sir. It’s admitted.
      The prosecutor then played the 911 audiotape for the jury. On it, Ruth speaks
to a 911 operator, telling the operator that a man has been following their car, that
they had stopped at McDonald’s, that the man jumped out of his car, that Ruth heard
the man say “kill her,” and that he was “coming back” as Ruth and Glenda were
driving away. Ruth then identifies appellant by name and explains the circumstances
of the morning’s eviction proceeding. The 911 operator instructs the two women to
drive to the police station, where a police officer would meet them.
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      The jury found appellant guilty of the charged offense. The trial court
sentenced appellant to 180 days in county jail but granted community supervision
for one year, and imposed a $1,000 fine.

      Appellant appeals his conviction.

                                      Analysis

      In a single issue, appellant argues that the trial court abused its discretion by
admitting the 911 audiotape, which substantially and injuriously influenced the
jury’s verdict.

A.    Standard of Review and Applicable Law

      We review a trial court’s evidentiary ruling for an abuse of discretion. See
Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Zavala v. State, 401
S.W.3d 171, 176 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). We will not
disturb the ruling if it is within the zone of reasonable disagreement. See Winegarner
v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007); Roderick v. State, 494 S.W.3d
868, 874 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Instead, we will uphold
the ruling if it is reasonably supported by the record and correct on any theory of law
applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App.
2002); Roderick, 494 S.W.3d at 874.

      Even if a trial court errs in admitting or excluding evidence, we will not
overturn a judgment unless the error affected the appellant’s substantial rights. See
Tex. R. App. P. 44.2(b); Rene v. State, 376 S.W.3d 302, 305 (Tex. App.—Houston
[14th Dist.] 2012, pet. ref’d). We will conclude that the erroneous admission of
evidence did not affect an appellant’s substantial rights—and thus does not require
reversal—if, after examining the record as a whole, we have fair assurance that the



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error did not influence the jury, or had but a slight effect upon the jury’s verdict. See
Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000).

      Evidence is not relevant—and thus is not admissible—if it is not authentically
what its proponent claims it to be. See Tienda v. State, 358 S.W.3d 633, 638 (Tex.
Crim. App. 2012); Tex. R. Evid. 104(a), 402. Texas Rule of Evidence 901 governs
the authentication requirement for the admissibility of evidence, including
audiotapes. See Tex. R. Evid. 901; Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim.
App. 1998). Rule 901 provides in pertinent part:

      (a) In General. 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.
      (b) Examples. The following are examples only—not a complete
      list—of evidence that satisfies the requirement:
             (1) Testimony of a Witness with Knowledge. Testimony that an
             item is what it is claimed to be. . . .
             (5) Opinion About a Voice. An opinion identifying a person’s
             voice—whether heard firsthand or through mechanical or
             electronic transmission or recording—based on hearing the voice
             at any time under circumstances that connect it with the alleged
             speaker.
Tex. R. Evid. 901(a), (b)(1), (b)(5).

B.    Application

      In his sole issue on appeal, appellant argues that the State failed to lay a proper
predicate in authenticating the 911 audiotape and that the trial court therefore abused
its discretion in admitting the tape over appellant’s objection.

      After reviewing the record, we conclude that Ruth’s testimony satisfies the
authentication requirement prescribed by Rule 901(a). During trial, Ruth testified
that: (1) she called 911, (2) she listened to the audio recording prior to trial, (3) the
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audiotape was a fair and accurate recording of her conversation with the 911
operator, and (4) the recording had not been altered. Because Ruth made the 911
call, she was a witness with knowledge that the 911 call was what the State claimed
it to be, see Tex. R. Evid. 901(b)(1), and was qualified to identify the voices on the
tape as those of herself and the 911 operator, see Tex. R. Evid. 901(b)(5). Ruth’s
testimony is sufficient “to support a finding that the item is what the proponent
claims it is,” and the audiotape therefore was properly authenticated under Rule 901.
Tex. R. Evid. 901(a); see also Montemayor v. State, No. 13-14-00173-CR, 2016 WL
4272384, at *6 (Tex. App.—Corpus Christi Aug. 11, 2016, pet. ref’d) (mem. op.,
not designated for publication) (trial court did not abuse its discretion in admitting
audio recording of 911 call authenticated by witness who made the call).

      We hold that the trial court did not abuse its discretion by admitting the
audiotape of the 911 call upon Ruth’s authentication. Because appellant has not
shown that the trial court abused its discretion in overruling his objection to the 911
call, we need not engage in a harm analysis. See Rodriguez-Veduzco v. State, No.
14-15-01051-CR, 2017 WL 1274148, at *7 (Tex. App.—Houston [14th Dist.] Apr.
4, 2017, no pet.) (mem. op., not designated for publication).

                                     Conclusion

      We overrule appellant’s sole issue, and we affirm the trial court’s judgment.



                                        /s/       Kevin Jewell
                                                  Justice

Panel consists of Justices Donovan, Wise, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).




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