                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-12-00398-CR

                                          Robert WATSON,
                                             Appellant

                                                 v.
                                            The STATE of
                                         The STATE of Texas,
                                               Appellee

                   From the 274th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 11-1543-CR
                              Honorable Gary L. Steel, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: December 4, 2013

AFFIRMED

           Appellant Robert Watson was convicted by a jury of delivery of a controlled substance and

sentenced to ten years confinement in the Institutional Division of the Texas Department of

Criminal Justice. On appeal, Watson asserts (1) the trial court erred in allowing the cocaine, the

photographs of the cocaine, and the laboratory report into evidence because the State failed to

properly authenticate the alleged cocaine’s chain of custody; (2) there was insufficient evidence

of corroboration and the trial court erred in failing to provide an instruction regarding such; (3) the

trial court erred in failing to provide an instruction that the alleged cocaine was either tampered
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with or unlawfully obtained; and (4) the silent videotape in question violated Watson’s rights under

the Confrontation Clause of the United States and Texas Constitutions. We affirm the trial court’s

judgment.

                                          BACKGROUND

       In April of 2011, the Guadalupe County Sheriff’s Office Narcotics Division entered into

an agreement with a confidential informant, Melvin Bruns, to help secure several drug cases for

indictment. In exchange for Bruns’s help, the District Attorney’s Office agreed not to file an

evading arrest charge pending against Bruns. One of the individuals identified by Bruns was

Appellant Robert Watson.

       On April 12, 2011, Lieutenant John Flores fitted Bruns with an audio/video recording

device. Under surveillance by the sheriff’s office, Bruns drove to Watson’s residence, parked the

vehicle, and entered Watson’s home. During the transaction, Bruns allegedly purchased cocaine

from Watson. Bruns then drove to a predetermined location to meet Lieutenant Flores and

Investigator Kris Deslatte. Investigator Deslatte obtained the substance in question from Bruns’s

vehicle. The entire proceedings, from shortly after Bruns was fitted with the recording device until

Investigator Deslatte removed the substance from Bruns’s vehicle, were recorded. Later analysis

proved the substance in question was approximately 1.83 grams of cocaine.

       On May 15, 2011, Watson was charged with one second-degree felony count—delivery of

a controlled substance, namely cocaine. Because Bruns’s whereabouts were unknown at the time

of trial, Bruns did not testify. The jury returned a guilty verdict, and after finding the State’s

enhancement allegation true, assessed punishment at ten years confinement. Watson appeals.

                      PROPER AUTHENTICATION AND CHAIN OF CUSTODY

       In his first three issues, Watson argues the State failed to properly authenticate the chain of

custody regarding the cocaine. More specifically, Watson argues the substance, collected by the
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officers and tested at the lab, cannot be tied directly to Watson. Accordingly, Watson argues the

trial court erred in admitting the cocaine, the photographs of the cocaine, and the laboratory

analysis of the cocaine.

A.     Standard of Review

       An appellate court reviews a trial court’s admission of evidence under an abuse of

discretion standard. Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998) (“The standard

of review for a trial court’s ruling under one of the rules of evidence is abuse of discretion.”); see

also Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Page v. State, 137 S.W.3d 75,

78 (Tex. Crim. App. 2004). The trial court does not abuse its discretion by admitting evidence

unless the court’s determination lies outside the zone of reasonable disagreement. Druery v. State,

225 S.W.3d 491, 502 (Tex. Crim. App. 2007) (citing Moses v. State, 105 S.W.3d 622, 627 (Tex.

Crim. App. 2003)); Casey, 215 S.W.3d at 879.

B.     Chain of Custody

       Prior to admitting evidence in a criminal case, the court must determine whether the chain

of custody, i.e., continuous and uninterrupted possession of the evidence, was preserved. Martinez

v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). A chain of custody

is sufficiently authenticated when the State establishes “the beginning and the end of the chain of

custody, particularly when the chain ends at a laboratory.” Id.; see also Stoker v. State, 788 S.W.2d

1, 10 (Tex. Crim. App. 1989), disapproved of on other grounds, Horton v. California, 496 U.S.128

(1990) and Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998). Links in the chain may be

proven by circumstantial evidence. Bass v. State, 830 S.W.2d 142, 146 (Tex. App.—Houston

[14th Dist.] 1992, pet. ref’d). In Florence v. State, No. 14-94-00380-CR, 1996 WL 233734, at *4–

5 (Tex. App.—Houston [14th Dist.] May 9, 1996, pet. ref’d) (mem. op., not designated for

publication), the contraband was discarded by a suspect as he ran from the officer. Although the
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evidence was not collected until after the chase ended, the court held that “the interval between

appellant’s disposal and the officer’s retrieval did not constitute a break in the chain of custody.”

Id. at *4.

        1.     Texas Rule of Evidence 901

        “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). The question before the trial court is whether

“a reasonable juror could find that the evidence has been authenticated or identified.” Druery, 225

S.W.3d at 502. Courts traditionally provide a broad reading of Rule 901, allowing the jury to

weigh the credibility of the evidence, “[s]o long as the authenticity of the proffered evidence was

at least within the zone of reasonable disagreement.” Campbell v. State, 382 S.W.3d 545, 552

(Tex. App.—Austin 2012, no pet.) (internal quotation marks omitted).

        2.     Necessary Predicate

        The predicate for introduction of a photograph and a silent videotape not accompanied by

sound requires “proof of (1) its accuracy as a correct representation of the subject at a given time,

and (2) its material relevance to a dispute issue.” Huffman v. State, 746 S.W.2d 212, 222 (Tex.

Crim. App. 1988) (concluding motion pictures without sound are simply a collection of

photographs); see also Benford v. State, No. 03-02-00686-CR, 2005 WL 240611, at *2 (Tex.

App.—Austin Feb. 3, 2005, pet. ref’d) (mem. op., not designated for publication). The predicate

need not be laid by the photographer, the individual being photographed, or even a person present

in the photograph in question. Huffman, 746 S.W.2d at 222. Any witness observing the scene

depicted in the photograph may lay the predicate so long as the witness can provide testimony

based on personal knowledge, sufficient to support a finding that the matter in question is what its

proponent claims. Id.; see also TEX. R. EVID. 901(a).
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       3.      Predicate Laid Before the Trial Court

       Although the silent video was directly offered through Detective John Flores, the trial court

could also look to the testimony of Detective Kris Deslatte for authentication and knowledge of

the video’s contents. The officers testified that, despite Bruns’ criminal history and current

fugitive status, Bruns was very reliable and helped make several successful cases. On the day in

question, officers listened to a phone conversation between Bruns and Watson. More specifically,

the officers heard Watson invite Bruns to his residence to presumably purchase drugs.

       Prior to Bruns leaving for Watson’s residence, the officers searched Bruns and his vehicle

for money or drugs and then fitted Bruns with a recording device. Only after confirming Bruns

and the vehicle were clean, the officers handed Bruns money with which to purchase the drugs.

The officers maintained full surveillance of Bruns traveling to Watson’s residence, watched as

Bruns entered Watson’s residence, and watched Bruns as he exited the residence approximately

eleven minutes later. The officers then picked up their surveillance of Bruns as they followed him

to an agreed meeting point. The videotaped recording ran continuously, for over half an hour,

from the moment the officers identified themselves on the recording until they removed the

videotape after the purchase. The only break in the officers’ visual surveillance was the time Bruns

rounded the corner and entered Watson’s residence. The officers confirmed the seized drugs were

not in Bruns’ vehicle or on his person prior to entering Watson’s residence.

       Although the audio portion of the videotape was muted before the jury, the silent recording

shows an exchange of money and Watson weighing something on a scale.                 Based on the

information provided during the controlled buy, the officers obtained and executed a search

warrant on Watson’s residence. The officers testified to their personal knowledge of the contents

of the videotaped recording, including the beginning, the end, and all but a brief period of time

when the informant was out of view. Additionally, however, after obtaining the search warrant,
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the officers were able to testify that the silent videotaped recording accurately reflected the interior

of the residence, and more specifically, the room in which Bruns met with Watson.

       4.      Admission of the Videotaped Recording

       The court’s opinion in Ballard v. State, 23 S.W.3d 178, 180 (Tex. App.—Waco 2000, no

pet.), is instructive. In Ballard, the officers used an undercover informant, fitted him with video

recording camera, and activated the camera as the informant exited the officer’s vehicle. Id. The

informant met with the defendant and purchased cocaine. Id. The informant then met back with

an officer, gave the officer the cocaine in question and the officer turned the video recording off.

Id. In determining that the videotaped recording was properly authenticated under Rule 901, the

court identified testimony it considered relevant in determining if the silent videotaped recording

was properly authenticated: the recording was continuous and uninterrupted, the officer

corroborated specific items in the video recording, and the fact-finder could compare the recorded

video with the physical appearance of the defendant. Id. at 182. The court further held that absent

affirmative evidence of fraud or tampering, alleged issues concerning gaps in the chain of custody

affect the weight to be given the evidence and not the admissibility of the evidence. Id. at 183; see

Dossett v. State, 216 S.W.3d 7, 17 (Tex. App.—San Antonio 2006, pet. ref’d); see also Druery,

225 S.W.3d at 503–04; Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997); Ballard,

23 S.W.3d at 183 (noting informant and officers testified video recording had not been altered in

any respect and defendant offered no affirmative evidence of tampering).

       The current silent videotaped recording is not different.          The officers had personal

knowledge of the contents contained on the videotape. See Huffman, 746 S.W.2d at 222. The tape

was continuous and uninterrupted, the officers corroborated specific items in the recorded video,

and the fact-finder could compare the recorded video with the physical appearance of the

defendant. See Ballard, 23 S.W.3d at 182. The officers searched Bruns and his vehicle prior to
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and immediately after the purchase.      Additionally, there was no evidence of tampering or

contamination. See Ballard, 23 S.W.3d at 183. The officers affirmatively stated the videotape

accurately represented the scene and events it purported to portray. See Huffman, 746 S.W.2d at

222. Although the officers were not present during the entire videotaped recording, the trial court

could reasonably conclude the officers properly laid the predicate under Rule 901(a). Id.; see also

Ballard, 23 S.W.3d at 183.

C.     Admissibility of Cocaine, Photos, and Lab Report

       Similar to the admission of the silent videotape, the officers properly authenticated the

chain of custody in regard to the cocaine, the still photos, and the lab report. See Druery, 225

S.W.3d at 502. The officers testified that, to the best of their abilities, they were confident the

vehicle did not contain cocaine and the confidential informant did not have cocaine on his body

prior to entering Watson’s residence.

       Based on the evidence presented at trial, including the officers’ testimony and the silent

videotaped recording, we agree that a reasonable juror could have concluded the cocaine produced

at trial was the same cocaine delivered by Watson on the recording. Accordingly, any gaps in the

chain of custody regarding the cocaine went to the weight of the evidence and not to its

admissibility. See Druery, 225 S.W.3d at 502; Dossett, 216 S.W.3d at 17. Watson’s complaints

regarding the trial court’s admission of the cocaine, the photographs of the cocaine, and the

laboratory analysis report of the cocaine are overruled.

                           CORROBORATING EVIDENCE UNDER
                   TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 38.141

       Watson next argues the corroborating evidence was insufficient “to connect [Watson] with

the offense committed” and the trial court erred in failing to instruct accordingly. See TEX. CODE

CRIM. PROC. ANN. § 38.14 (West 2005) (“A conviction cannot be had upon the testimony of an


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accomplice unless corroborated by other evidence tending to connect the defendant with the

offense committed; and the corroboration is not sufficient if it merely shows the commission of

the offense.”); Simmons v. State, 205 S.W.3d 65, 71–72 (Tex. App.—Fort Worth 2006, no pet.)

(observing that courts look to article 38.14 for guidance in interpreting article 38.141); Cantelon

v. State, 85 S.W.3d 457, 459–60 (Tex. App.—Austin 2002, no pet.) (same). Watson did not object

at trial; however, his failure to do so is only relevant in determining which standard of harm

applies. See Deroven v. State, No. 04-98-00942-CR, 2000 WL 84650, at *2 (Tex. App.—San

Antonio Jan. 26, 2000, pet. ref’d) (mem. op., not designated for publication) (citing Howard v.

State, 972 S.W.2d 121, 125–26 (Tex. App.—Austin 1998, no pet.)).

A.     Texas Code of Criminal Procedure Article 38.141

       Although officers routinely utilize confidential informants, this type of “accomplice

testimony implicating another person should be viewed with a measure of caution, because

accomplices often have incentives to lie, such as to avoid punishment or shift blame to another

person.” Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998) (footnote omitted)

(explaining the purpose of article 38.14); accord Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim.

App. 2011). Texas Code of Criminal Procedure article 38.141 provides as follows:

       (a) A defendant may not be convicted of an offense under Chapter 481, Health and
           Safety Code, on the testimony of a person who is not a licensed peace officer
           or a special investigator but who is acting covertly on behalf of a law
           enforcement agency or under the color of law enforcement unless the testimony
           is corroborated by other evidence tending to connect the defendant with the
           offense committed.

       (b) Corroboration is not sufficient for the purposes of this article if the
           corroboration only shows the commission of the offense.

TEX. CODE CRIM. PROC. ANN. art. 38.141(a), (b) (emphasis added). In interpreting article 38.141,

both parties agree cases construing the limitations on admission of accomplice witness testimony

set forth in article 38.14 are applicable. See Simmons, 205 S.W.3d at 71–72; Cantelon, 85 S.W.3d

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at 459–60 (noting statutes substantially the same and suggesting same purpose and same standard

for corroboration should apply). Both statutes attempt to ensure that a jury does not consider an

accomplice witness’s testimony unless it finds that other evidence corroborates the discredited

witness’s testimony. Cantelon, 85 S.W.3d at 460. With regard to article 38.141, the concern is

even greater because the informant or covert witness is working with officers for “self-interested

reasons.” Simmons, 205 S.W.3d at 72 (citing Cantelon, 85 S.W.3d at 460).

       When the evidence shows a witness is an accomplice as a matter of law, the trial court has

a duty to instruct the jury that the witness is an accomplice and the witness’s testimony must be

corroborated to support a conviction. See Druery, 225 S.W.3d at 498–99 (requiring some evidence

of an affirmative act on the part of the witness to assist in the commission of the charged offense

before the jury instruction is required); Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App.

2004). A defendant has the right to an accomplice witness instruction if the issue is raised by the

evidence, regardless of the trial court’s view of the credibility of the evidence. Cocke v. State, 201

S.W.3d 744, 748 (Tex. Crim. App. 2006).

B.     Analysis

       There is no question that Bruns was a confidential informant exchanging information for a

reduction or dismissal of another case. See Smith, 332 S.W.3d at 439. Yet, the crux of this case,

and Watson’s objections on appeal, turn on the fact that Bruns did not testify. Watson argues that

although Bruns did not testify in person, he was the source of “the entirety of the evidence used

against [Watson].”

       The State points to Bingham v. State, 913 S.W.2d 208, 209–10 (Tex. Crim. App. 1995),

for the proposition that out–of–court statements are not testimony under articles 38.14 and 38.141.

The Bingham court, analyzing article 38.14 in light of the legislative intent and common meaning,

concluded “we read Article 38.14 to embrace only the in–court ‘testimony’ of an accomplice.” Id.
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at 211. The State agreed to offer the videotaped recording without the audio component before

the jury. Thus, there was no “in-court” testimony and article 38.141 is not applicable. Watson has

not directed this court to any contrary case law. Accordingly, this court need not address the

sufficiency of the corroborating evidence and the trial court was not required to instruct the jury

under article 38.141.

                             REQUIRED INSTRUCTION UNDER
                    TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 38.23

       Watson next urges the trial court erred in failing to instruct the jury that the cocaine in

question was possibly tampered with in violation of article 38.23. See TEX. CODE CRIM. PROC.

ANN. art. 38.23 (West 2005).

A.     Texas Code of Criminal Procedure Article 38.23

       “[W]hen an issue of fact is raised [regarding whether the evidence requires an instruction

under article 38.23], a defendant has a statutory right to have the jury charged accordingly.”

Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). Texas Code of Criminal

Procedure article 38.23 provides as follows:

       (a) No evidence obtained by an officer or other person in violation of any provisions
       of the Constitution or laws of the State of Texas, or of the Constitution or laws of
       the United States of America, shall be admitted in evidence against the accused on
       the trial of any criminal case.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a). As a prerequisite to Watson’s entitlement to the jury

instruction in question, Watson was required to show the following:

       (1)   the evidence before the jury raised an issue of fact,
       (2)   the evidence in question was affirmatively contested, and
       (3)   the contested issue was “material to the lawfulness of the challenged conduct
             in obtaining the evidence.”

See Madden, 242 S.W.3d at 510. The Madden court further opined that questions by defense

counsel on cross-examination are not sufficient to raise a disputed fact. Id. at 513–14. To the


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contrary, article 38.23 requires affirmative evidence to raise an issue of fact. Id. at 515; see TEX.

CODE CRIM. PROC. ANN. art. 38.23.

B.     Analysis

       Watson contends the following alleged factual inconsistencies amounted to affirmative

evidence that created a factual dispute as to whether Bruns tampered with the evidence:

       (1)     Bruns entered the residence with $600 and was instructed to purchase 14
               grams of cocaine,
       (2)     Bruns provided the officers with only 1.83 grams of cocaine,
       (3)     Bruns returned only $400 to the officers,
       (4)     Lieutenant Flores testified $200 was significantly more than the cocaine
               should have cost,
       (5)     Lieutenant Flores testified the discrepancies in the amount of cocaine and
               the money returned by Bruns caused him concern,
       (6)     Lieutenant Flores testified the circumstances raised the question of
               tampering, and
       (7)     there appeared to be a difference in the appearance of the cocaine introduced
               into evidence and the cocaine seen in the video recording.

At trial, and on appeal, Watson argues there is a “significant discrepancy between the amount of

cocaine Melvin Bruns was instructed to purchase and the amount he purchased.” Although on

cross-examination Lieutenant Flores conceded the possibility of tampering, there was no testimony

Bruns tampered with the evidence. In fact, the State argues Watson never presented any evidence

refuting the amount of drugs delivered or the amount of money paid for the drugs.

       The only evidence before the trial court was defense counsel’s cross-examination and

argument regarding the amount of contraband obtained from Watson. Defense counsel claimed

the amount of cocaine returned by Bruns was disproportionate to the dollars provided. Watson

did not argue any alleged discrepancies were “material to the lawfulness of the challenged conduct

in obtaining the evidence.” See Madden, 242 S.W.3d at 510. To the contrary, he insinuated that

Bruns “pocketed” some of the cocaine. Even if Bruns retained a portion of the cocaine, that is not

evidence that Watson did not deliver cocaine to Bruns. As the trial court pointed out, if Bruns had


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returned with the proportionate amount suggested by defense counsel, it would not affect the

finding that Watson delivered the cocaine. To the contrary, whether Bruns failed to return the

entire amount Watson provided to Bruns only affected the penalty range under which the State

charged Watson.

       Because Watson failed to produce any affirmative evidence of tampering or unlawful

conduct, we overrule this issue.

                                    CONFRONTATION CLAUSE

       In his last issue on appeal, Watson argues the trial court erred in admitting the silent video

recording from a device worn by Bruns in violation of his right to confrontation. Watson urges

the recording contained “statements” by Bruns.

A.     Standard of Review

       Although an appellate court defers to a trial court’s determination of historical facts and

credibility, constitutional rulings are reviewed de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex.

Crim. App. 2006) (citing Lilly v. Virginia, 527 U.S. 116, 137 (1999)).             This includes a

determination of whether a statement is testimonial or non-testimonial. Id.

B.     Confrontation Clause

       The Sixth Amendment to the United States Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against

him . . . .” U.S. CONST. amend. VI; Pointer v. Texas, 380 U.S. 400, 400–01 (1965). The

Confrontation Clause and cross-examination are designed, at least in part, to ensure both fairness

in criminal proceedings and the reliability of evidence offered before the fact-finder. Lilly v.

Virginia, 527 U.S. 116, 123–24 (1999). Cross–examination provides an avenue to test the

believability of a witness and the truth of that witness’s testimony. Davis v. Alaska, 415 U.S. 308,

316 (1974).
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       1. Testimonial Statements Under the Confrontation Clause

       The Confrontation Clause is designed to guard against the presentation of testimonial and

out-of-court statements made by an absent witness. Wall, 184 S.W.3d at 734–35. At the heart of

the issue is a defendant’s inability to utilize the safeguards of cross-examination to ensure and test

the witness’s credibility. Id. at 735–36. An appellate court weighs each Confrontation Clause

issue on a case-by-case basis, balancing the State’s right to present evidence with the defendant’s

right to cross-examine and the risk factors associated with admission of the evidence. Lopez v.

State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000).

       In Crawford v. Washington, 541 U.S. 36, 59 (2004), the Supreme Court held that the

Confrontation Clause bars the admission of an out-of-court testimonial statement made by a non-

testifying witness absent evidence (1) the witness is unavailable to testify, and (2) “the defendant

has had a prior opportunity to cross-examine” the witness. Here, the key issue is whether the non-

audio statement was testimonial. Id.

       In determining whether a statement is testimonial, an appellate court looks to “the formal

nature of the interaction, the intent of the declarant, or some combination of the two factors.”

Moore v. State, 169 S.W.3d 467, 471 (Tex. App.—Texarkana 2005, pet. ref’d) (citing Crawford,

541 U.S. at 68). The Confrontation Clause is more a procedural guarantee than a substantive one.

Crawford, 541 U.S. at 61. Thus, if the proposed testimony is the functional equivalent of an ex

parte, in-court statement, the statement is testimonial. Wall, 184 S.W.3d at 735. “Statements are

testimonial when the circumstances objectively indicate that there is no ongoing emergency, and

that the primary purpose of the interrogation is to establish or prove past events potentially relevant

to later criminal prosecution.” Terry v. State, 397 S.W.3d 823, 833 (Tex. App.—Houston [14th

Dist.] 2013, pet. ref’d) (emphasis added) (citing Michigan v. Bryant, 131 S. Ct. 1143, 1154–55



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(2011)). Importantly, however, testimonial statements are not limited to statements given under

oath. See Crawford, 541 U.S. at 52.

          2.     Testimonial Under the Fifth Amendment

          In Poulos v. State, 799 S.W.2d 769, 770 (Tex. App.—Houston [1st Dist.] 1990, no pet.),

Poulos was stopped for suspected driving under the influence and the officer requested she perform

several field sobriety tests. Id. During trial, Poulos argued the silent videotape was a custodial

interrogation and, therefore, violated her federal and state constitutional protections against self-

incrimination. Id. at 770–71. Relying on the Court of Criminal Appeals decision in Miffleton v.

State, 777 S.W.2d 76, 78 (Tex. Crim. App. 1989), the court held the images of Poulos captured on

the silent videotape were “‘not testimonial in nature and therefore [do] not offend the Fifth

Amendment privilege against self-incrimination.’” Poulos, 799 S.W.2d at 771 (alteration in

original) (quoting Miffleton, 777 S.W.2d at 78). We conclude that for the same reasons the silent

videotape was not testimonial under the Fifth Amendment, it is not testimonial under the

Confrontation Clause.

C.        Texas Rule of Evidence 801

          The State contends that in addition to the videotape being non-testimonial, the silent

videotape is not a statement under Texas Rule of Evidence 801. See TEX. R. EVID. 801. Rule

801(a) defines a statement as “(1) an oral or written verbal expression or (2) nonverbal conduct of

a person, if it is intended by the person as a substitute for verbal expression.” Id. “Rule of Evidence

801(e) identifies circumstances in which certain statements are not hearsay.” Paredes, 129 S.W.3d

at 534.

          Rule of Evidence 801(e)(2)(B), provides, in part, that an out-of-court statement is not

hearsay if it is (1) an admission by a party opponent, (2) offered against that party, and (3) “a

statement of which the party has manifested an adoption or belief in its truth.” TEX. R. EVID.
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                                                                                     04-12-00398-CR


801(e)(2)(B). The proponent bears the burden of demonstrating, by a preponderance of the

evidence, the statement meets the criteria for an admission by a party opponent. Meador v. State,

812 S.W.2d 330, 333 (Tex. Crim. App. 1991); accord Legate v. State, 52 S.W.3d 797, 802 (Tex.

App.—San Antonio 2001, pet. ref’d).

D.     Analysis

       Here, the silent videotape was an ex parte statement and not a structured police questioning.

See Crawford, 541 U.S. at 50–53. More specifically, it was not an effort to establish or prove past

events as discussed in Terry. See Terry, 397 S.W.3d at 833. Watson has not provided any case

law to support the videotaped recording showing Bruns’s actions, including his exchange with

Watson, violated Watson’s rights under the Confrontation Clause. The setting of a confidential

informant purchasing contraband “is not one which ‘would lead an objective witness reasonably

to believe that the statement would be available’ for later judicial proceedings.” Curry v. State,

228 S.W.3d 292, 299 (Tex. App.—Waco 2007, pet. ref’d) (quoting Crawford, 541 U.S. at 52). As

the State argued, especially in light of the audio redaction, the recording is more akin to a

surveillance video than a testimonial statement by any individual. In light of the Court of Criminal

Appeals’ determination that a silent videotape is no different than a collection of photographs, we

agree with the State’s characterization of the videotape. See Huffman, 746 S.W.2d at 222.

       The videotape was played without the audio for the jury. Although Watson argues the

recording represents “testimony” under the Confrontation Clause, the case law does not appear to

support his position. Bruns was outfitted by the officers. There was not, however, any formal

questioning by the officers and nothing compelling Watson to be at the scene or to stay at the

scene. In fact, there were no statements made by either Watson or Bruns—only silent images.

       Watson argues the videotaped recording represents nonverbal conduct. The only images

of Bruns are his hands (1) on the steering wheel of the vehicle, (2) knocking on the door of
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Watson’s residence, and (3) exchanging of money for an alleged controlled substance. There is

no testimony or support for the proposition that the silent video recording was “intended by the

person as a substitute for verbal expression.” See TEX. R. EVID. 801(a)(2). We conclude the silent

videotaped recording in question was neither testimonial nor a statement and, therefore, did not

invoke the Sixth Amendment or violate Watson’s rights under the Confrontation Clause.

                                          CONCLUSION

       Based on the evidence presented at trial, including the officers’ testimony and the

continuous and uninterrupted videotaped recording, the trial court did not err in concluding a

reasonable juror could have determined the cocaine produced at trial was the same cocaine

delivered by Watson on the videotaped recording. Thus, any alleged gaps in the chain of custody

of the cocaine do not affect its admissibility, but instead go to the jury’s determination of weight

of the evidence. See Druery, 225 S.W.3d at 502; Dossett, 216 S.W.3d at 17. Accordingly, the

trial court did not err in admitting the cocaine, the photographs of the cocaine, or the laboratory

analysis report of the cocaine.

       Additionally, the trial court did not err in failing to give either of the requested jury

instructions. Because Bruns did not testify, there was no “in-court” or accomplice testimony

necessitating additional ties between Watson and the delivery of the cocaine. See Bingham, 913

S.W.2d at 211. Article 38.141 is, therefore, not applicable and the trial court was not required to

instruct the jury under such. See TEX. CODE CRIM. PROC. ANN. art. 38.141; Bingham, 913 S.W.2d

at 211. Similarly, without affirmative evidence of tampering or unlawful conduct by the officers,

Watson was not entitled to an instruction under article 38.23. See TEX. CODE CRIM. PROC. ANN.

art. 38.23; Dossett, 216 S.W.3d at 17.




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       Finally, because we conclude the silent videotaped recording in question was neither

“testimonial” nor a statement, the recording did not violate Watson’s right of confrontation.

Accordingly, the judgment of the trial court is affirmed.

                                                  Patricia O. Alvarez, Justice

PUBLISH




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