 NUMBERS 13-08-00324-CR
                                         13-08-00325-CR
                                         13-08-00326-CR
                                         13-08-00327-CR
                                         13-08-00328-CR
                                         13-08-00329-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                        Appellant,

                                           v.

HORACE MARK RYMAN,                                                          Appellee.


   On appeal from the 156th District Court of Live Oak County, Texas.


                       MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Yañez and Benavides
              Memorandum Opinion by Justice Benavides
      Appellee, Horace Mark Ryman, was indicted on multiple charges arising out of a
motor vehicle collision in which several people were injured and two people were killed.
The State appeals the trial court’s order granting Ryman’s motion to suppress a video
created by a victim of the collision, purporting to demonstrate Ryman’s ability to view the
tail lights of a vehicle that he collided with from behind. See TEX. CODE CRIM. PROC. ANN.
art. 44.01(a)(5) (Vernon Supp. 2008). We affirm.
                                       I. BACKGROUND
         Ryman was indicted by six separate indictments filed in six separate trial court
cause numbers.1        The indictments were for (1) intoxication manslaughter, (2)
manslaughter, (3) aggravated assault, (4) injury to a child, (5) injury to an elderly person,
and (6) aggravated assault with a deadly weapon, all arising out of the same motor vehicle
collision. On February 11, 2008, Ryman filed a “Motion to Determine Admissibility of
Evidence” in each of the six trial court cases. In the motions, Ryman moved to suppress
“[a]ll diagrams, videotapes, photographs or other demonstrative evidence that were
prepared using any vehicles and equipment not involved in the collision of December 21,
2006.”
         The trial court held a hearing on the motions on February 19, 2008. At the hearing,
the State informed the trial court that it intended to offer a video, created by one of the
victims, as demonstrative evidence. The State anticipated that Ryman’s defense would
be that, at the time of the collision when he rear-ended the victim’s vehicle, he could not
see the vehicle’s tail lights because they were obscured by a basket containing a washer
and dryer attached to the rear of the vehicle. The video was intended to show that Ryman
could have seen the tail lights.




       1
          The trial court cause numbers are:      L-07-0051-CR-B, L-07-0050-CR-B, L-08-0021-CR-B,
L-07-0049-CR-B, L-07-0048-CR-B, and L-07-0047-CR-B.

                                               2
        The State offered testimony from three witnesses describing the video.2 First,
Enrique Mayoral, Sr. testified that he was one of the victims in the collision. At the time
of the offense, he was riding as a passenger in a 1999 Astro van that he owned. The van
had a “receiver basket” that was attached “in the hitch in the rear part of the van, and it
goes on the top of the bumper.” The basket was specially built for the van by Sigfredo
Ceja, who also owns an Astro van3 and who had a similar basket attached to his van.
Mayoral testified that at the time of the collision, the basket was holding a white washer
and dryer, and he testified that they were “normal” sized.
        Mayoral stated that Ceja offered to help him make a video because Mayoral and
Ceja knew that Ryman’s defense would be that the basket and washer and dryer were
covering the van’s tail lights. Mayoral testified that the purpose for making the video was
to show that, with the basket on the van, a person traveling behind the van could see the
tail lights.
        Mayoral testified that to make the video, Adam Guerra shot the video footage while
Ceja drove his own van, using his own basket to carry a washer and dryer. At first,
Mayoral testified that he used a washer and dryer that were “exactly the same” and were
the “same brand and same type” as the ones he was transporting at the time of the
collision. He further testified that the washer and dryer used in the video were also white.


        On cross-examination, however, Mayoral stated that the washer and dryer used in
the video were not the same size as those he was transporting on the day of the collision.

        2
            The video itself does not appear in the record.
        3
            Mayoral stated he believed that Ceja’s van was a 1998 model Astro van.

                                                         3
He testified that the “dryer is a little bigger and the washer is a little smaller.” But, he
explained, they fit in the basket, as did the ones he transported at the time of the collision.
On re-direct, Mayoral admitted that he did not know if the washer and dryer used in the
video were the same year or same model as those he was transporting on the day of the
collision, but he said it was “more or less” the same type. In response to questions from
the court, Mayoral stated he did not know if the washer and dryer were the same size: “It
might be bigger or maybe smaller.”
       Next, Ceja testified that he is a welder and that he built the basket that was attached
to Mayoral’s van at the time of the collision. He stated that he has a basket that is exactly
the same size as the one he prepared for Mayoral. He also explained that he owns a van
that is “two years’ difference” from Mayoral’s van.
       Ceja stated that he helped Mayoral make the video to “demonstrate that the basket
was—did not obstruct the lights because I have one exactly like it, and I made one knowing
that it was not going to obstruct the lights. And I helped him because I knew that someone
was saying that it did obstruct the lights.” He explained that the basket itself did not have
any lights. He claimed that he did not put lights on the basket because the van’s tail lights
were not obstructed by the basket.
       Ceja testified that he helped put the washer and dryer into the basket to make the
video. He stated that they “fit well, and there was a small space and he motioned with his
finger two, three inches . . . on either side.” He stated that there was no way the washer
and dryer could slide around because the basket had a gate that could lock into place.
Also, the basket was covered with a screen all around and in the bottom, so that the
washer and dryer could be tied down. Ceja testified that they did not tie the washer and

                                              4
dryer down in order to make the video because they were already secured in the basket,
and it was not necessary.
       Finally, Adam Guerra testified that he is an investigator with the Watts Law Firm in
San Antonio, Texas. He testified that he assisted Mayoral in taking the video at issue by
running the videotape and providing the camcorder. He said that the video was made on
a highway on the outskirts of San Antonio. Guerra explained that the first part of the video
was taken on a frontage road, and he was outside filming using a tripod. During the
second part of the video, he was a passenger in a vehicle driven by Mayoral, and he was
videotaping the van with the washer and dryer in its basket.
       Guerra stated, however, that the video was not taken on the same highway where
the collision occurred. When asked if the lighting was the same at the time of the collision,
Guerra stated, “I wouldn’t think so.” Rather, Guerra stated that the men picked the
location because it had a frontage road that was “pretty straight and pretty safe I guess.”
       Guerra stated that he did not know what speed they were traveling when they made
the video. He stated, “We didn’t try to reenact the accident or the speeds by any means.
It was more just to kind of get a visual of what someone may have seen . . . that night, the
night of the accident.” Rather, the men were merely trying to determine whether the
washer and dryer had obscured the lights on the van.
       Guerra then explained what he saw while making the video:
       The angles that we—the different speeds, different angles, different depths
       there didn’t seem to be any problems whatsoever seeing the lights, the
       washer and dryer especially because they happen to be white. I mean, it
       really reflected not only the washer and dryer, but it helped bring out the
       redness in the lights whether the breaks [sic] were applied or not. We also
       did it with breaks [sic] applied, breaks [sic] not applied, just different little
       scenarios that may or may not have helped. I don’t know.

                                              5
On cross-examination, Guerra admitted that he could not recall seeing the van’s license
plates or the lights on the license plate.
       After the testimony concluded, the State argued that it did not intend to offer the
video as an experiment using the same van, basket, and washer and dryer. Rather, the
video would be used for demonstrative purposes because “the defendant is going to get
up and testify that he couldn’t see the lights to the van when he hit it from behind.” The
State argued that it was irrelevant that the washer and dyer might be “a couple of inches”
different.
       Ryman’s attorney then countered that, in fact, the State intended to use this
evidence to prove that Ryman could see the lights and should have seen the lights. He
argued that: (1) the speed was different; (2) it was unclear whether the washer and dryer
were the same size; and (3) the lighting was not the same.
       On March 14, 2008, the trial court orally stated that it would grant the motion to
suppress. On May 7, 2008, the trial court issued a written ruling that included findings of
fact. Specifically, the trial court found that:
       6.     The vehicle depicted in the video sought to be used by the state as
              demonstrative evidence is not the same as the vehicle occupied by
              the deceased victim.
       7.     The vehicle depicted in the video was represented to be similar to the
              actual vehicle but not the same year model.
       8.     There was no showing that the weather conditions at the time of day
              or night when the video was prepared were similar to the time of the
              collision.
       9.     There was no showing that the road conditions were similar to the
              time and place of the collision.


                                                  6
       10.      There was no showing that the light configuration, which was the
                major emphasis of the subject video, on the rear of the vehicle
                depicted in the video was similar.
       11.      There was no evidence that the light on the rear of the subject vehicle
                were the same distance apart as the vehicle involved in the collision.
       12.      There was no evidence to show that the light on the rear of the
                vehicle depicted in the video were the same height above the roadway
                or the basket attached to the rear of the vehicle involved in the
                collision.
       13.      The evidence did demonstrate that the basket attached to the rear of
                the vehicle depicted in the video was the same as the basket on the
                rear of the vehicle involved in the collision.
       14.      There was evidence to show that the washer and dryer loaded in the
                basket on the rear of the vehicle depicted in the video were not the
                same as the items located in the rear of the vehicle involved in the
                collision.
       15.      There was no evidence that the washer and dryer loaded in the
                basket as depicted in the video were the same size as the actual
                washer and dryer in the basket at the time of the accident.
       16.      The evidence presented at hearing [sic] indicated that the washer and
                dryer loaded in the basket depicted in the video were smaller that [sic]
                the washer and dryer in the basket when the collision occurred.
In conclusion, the trial court held that “the video sought to be exhibited by the State to the
Jury in trial of these causes has not been established to be a fair and accurate
representation of the rear of the vehicle involved in the collision made the subject of these
indictments.”
       On May 20, 2008, the State filed notices of appeal in each cause number. The
notices of appeal stated that “[t]he evidence that was the subject of the defendant’s written
motion is of substantial importance in the instant case. Moreover, jeopardy has not
attached in the instant case. The appeal of the pre-trial order entered by this court is


                                               7
authorized by the express terms of the Texas Code of Criminal Procedure.” The notices
of appeal cited article 44.01(a)(5). However, while the notices of appeal were signed by
the district attorney, they did not contain any “certificate” and were not notarized.
       The same day, May 20, the State filed separate documents in each cause number
titled, “Certificate in Support of State’s Notice of Appeal.” These documents stated:
       The undersigned counsel is the prosecuting attorney in the instant case. As
       such the undersigned certifies to this Court that the instant appeal is not
       taken for purposes of delay and that the evidence that has been suppressed
       by the order of this Court is of substantial importance in the case.
       This Court docketed the appeals as cause numbers 13-08-00324-CR,
13-08-00325-CR,       13-08-00326-CR,      13-08-00327-CR,       13-08-00328-CR,          and
13-08-00329-CR. We stayed the trial court's proceedings pending the outcome of the
appeals by order dated June 12, 2008, and we consolidated the appeals by order dated
September 9, 2008.
                                      II. JURISDICTION
       Ryman first argues that this Court lacks jurisdiction over this appeal because the
State’s notice of appeal was not properly certified as required by article 44.01(a)(5) of the
code of criminal procedure.      TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5).           Article
44.01(a)(5) provides that the State may appeal an order by the trial court suppressing
evidence if “jeopardy has not attached in the case and if the prosecuting attorney certifies
to the trial court that the appeal is not taken for the purpose of delay and that the
evidence . . . is of substantial importance in the case.” Id. The Court of Criminal Appeals
has held that the certification requirement is jurisdictional. State v. Riewe, 13 S.W.3d 408,
411 (Tex. Crim. App. 2000).


                                             8
        Ryman concedes that the certification need not be in the notice of appeal itself and
can be included in a separate document. See State v. Johnson, 175 S.W.3d 766, 767
(Tex. Crim. App. 2005). However, Ryman argues that neither the notice of appeal nor the
separate certificate was sworn and notarized; thus, it was defective and failed to invoke the
Court’s jurisdiction. Ryman cites State v. Johnson for this proposition. Id. In Johnson,
however, although the State included its certification in an affidavit filed by the district
attorney, the Court of Criminal Appeals did not hold or imply in any way that an affidavit
was required. Id. And we have not located any case that requires the certification under
article 44.01(a)(5) to be a sworn and notarized statement. The statute does not require
the “certification” to be verified or notified or to be included in an affidavit, and we will not
read the requirement into the statute. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5).
We conclude that we have jurisdiction over this appeal, and now we turn to the merits.
                             III. EXCLUSION OF DEMONSTRATIVE EVIDENCE
        By its sole issue, the State argues that the trial court erred by suppressing the
video. The State argues that because it only intended to offer the video as demonstrative
evidence, the event depicted in the video need only be “substantially similar” to the event
in question. The State argues that it submitted evidence that: (1) the vehicle in the video
was the same make and model as that involved in the accident; (2) the basket was the
same; and (3) both the washer and dryer used in the video and involved in the accident
were “normal size.” The State argues that any differences should merely go to the weight,
and not the admissibility, of the video.4 We disagree.

         4
           Additionally, the State relies on Texas Rules of Evidence 401 and 901 to a rg u e th a t the evidence
should be admitted bec a u s e it was relevant and was properly identified and authenticated by persons with
knowl e d g e o f the video’s creation. See T EX. R. E VID . 401, 901. Ryman did not object on these grounds, nor

                                                       9
         We review a trial court’s decision to exclude demonstrative evidence for an abuse
of discretion. Valdez v. State, 776 S.W.2d 162, 168 (Tex. Crim. App. 1989); Wright v.
State, 178 S.W.3d 905, 920 (Tex. App.–Houston [14th Dist.] 2005, no pet.). A trial court
has wide latitude in its decision to admit or exclude evidence. Theus v. State, 845 S.W.2d
874, 881 (Tex. Crim. App. 1992). We will not overturn the trial court's decision if it is within
the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App.1990) (op. on reh'g).
         “[G]enerally the results of out-of-court experiments are admissible in the discretion
of the trial court if the experiment was made under similar conditions to the event to which
the results of the experiment relate.” Valdez, 776 S.W.2d at 168. “To be admissible, an
experiment need not be made under identical conditions of the event; dissimilarities go to
the weight and not the admissibility.” Id. This is not to say that any dissimilarity can be
disregarded and left to the jury’s discretion—when the demonstration or experiment is
different from the actual event in “critical” ways, those dissimilarities can require exclusion
of the evidence. See, e.g., Cantu v. State, 738 S.W.2d 249, 254-55 (Tex. Crim. App.
1987); see also Cockrell v. State, No. 14-05-00862-CR, 2006 WL 2290743, at *3 (Tex.
App.–Houston [14th Dist.] Aug. 10, 2006, pet. ref'd) (mem. op.; not designated for
publication). The proponent of the demonstration, which in this case was the State, bears
the burden to show that the conditions under which the demonstration is conducted are
sufficiently similar to the event in question. See Valdez, 776 S.W.2d at 168; Cantu, 738
S.W.2d at 255.
         For example, in Cantu, the defendant requested that the court allow him to conduct

did the trial court rule on the applicability of these evidentiary rules.

                                                          10
an experiment in the courtroom to demonstrate the lighting that existed in a room where
an alleged murder took place. 738 S.W.2d at 254. The trial court refused to allow him to
turn out the lights in the courtroom to demonstrate the amount of light emanating from a
lamp, noting that “the problem is that [the courtroom] is not at all like the surroundings and
the conditions that existed on November 8 of '84.” Id. Specifically, the judge pointed out
that the height of the walls, the width of the room, and the color of the walls were different
from the room in which the murder occurred, which affected the degree of illumination. Id.
       The court of criminal appeals affirmed, holding that an experiment’s conditions must
be similar to the original event with respect to the “critical” facts the experiment attempts
to demonstrate:
       In the instant case the experiment was not substantially similar to the actual
       event. As the trial judge noted, the size of the room and the color of the
       walls were not the same. For an experiment designed to show the amount
       of illumination cast by a lamp in a dark living room of a house, such factors
       are critical. The trial judge did not abuse his discretion in refusing to allow
       the experiment to be conducted in the courtroom.
Id. at 255.
       Similarly, in this case, the State did not meet its burden to show that the conditions
under which the demonstration were conducted were sufficiently similar to the event in
question with respect to the critical facts. The undisputed purpose for the video was to
show that Ryman could have seen the vehicle’s tail lights. The ability to see an object in
a particular place at a particular time is affected by numerous, “critical” conditions. See id.
As the trial court concluded, the evidence did not establish that: (1) the lighting of the area
on the highway was the same in the collision as in the demonstration; (2) the tail lights on
the van used in the demonstration were the same space apart as on the vehicle in the


                                              11
accident; (3) the road conditions were the same; or (4) the weather conditions were the
same. See id. These were all critical factors that the State was required to establish, but
did not. See id.
       Furthermore, although the State argues that the vehicle in the video was the same
make and model as that involved in the accident, the court’s findings of fact concluded, and
the evidence showed, that the years of the vans were not the same. The State did not
offer any testimony explaining that the rear light configurations of the vehicles were the
same despite this difference. Additionally, although the court found that the baskets on the
rear of the vehicles were the same, the court found that the evidence showed that the
washers and dryers were not. These were also critical factors that the State should have
established as similar to event sought to be demonstrated. See id.; see also Ford Motor
Co. v. Nowak, 638 S.W.2d 582, 590 (Tex. App.–Corpus Christi 1982, no pet.) (holding that
video attempting to demonstrate conditions of vehicle was properly excluded because
proponent did not show that vehicles were similar). Because so many critical conditions
were not similar, we conclude that the trial court did not abuse its discretion in excluding
the video.
                                     IV. CONCLUSION
       Having overruled the State’s only issue, we affirm.



                                                        GINA M. BENAVIDES,
                                                        Justice
Do not publish.
TEX. R. APP. P. 47.2(b).


                                            12
Memorandum Opinion delivered and
filed this the 30th day of July, 2009.




                                         13
