                                                                     ACCEPTED
                                                                 06-15-00222-CR
                                                      SIXTH COURT OF APPEALS
                                                            TEXARKANA, TEXAS
           No. 06-15-00222-CR                               6/30/2016 4:28:13 PM
                                                                DEBBIE AUTREY
                                                                          CLERK
       IN THE COURT OF APPEALS

                FOR THE
                                                FILED IN
   SIXTH JUDICIAL DISTRICT OF TEXAS      6th COURT OF APPEALS
                                           TEXARKANA, TEXAS
                                         7/1/2016 9:27:00 AM
                                             DEBBIE AUTREY
                                                 Clerk
   BENJAMIN ROBERT CAIN III, Appellant

                  VS.

     THE STATE OF TEXAS, Appellee



APPEALED FROM THE 71ST DISTRICT COURT

       HARRISON COUNTY, TEXAS

           CAUSE NO. 13-0257X




             STATE’S BRIEF



                        COKE SOLOMON
                        CRIMINAL DISTRICT ATTORNEY
                        HARRISON COUNTY, TEXAS
                        P.O. BOX 776
                        MARSHALL, TEXAS 75671
                        (903) 935-4840

     BY:   LAURA M. CARPENTER
           ASSISTANT CRIMINAL DISTRICT ATTORNEY
           BAR #08618050
           ATTORNEY FOR THE STATE




     Oral Argument is Not Requested
                                  No. 06-15-00222-CR

                             BENJAMIN ROBERT CAIN III,
                                          Appellant

                                             VS.

                                THE STATE OF TEXAS,
                                            Appellee

                  __________________________________________

                    NAMES OF ALL PARTIES AND ATTORNEYS
                  __________________________________________

      The names and identifying information of all parties and attorneys were correctly

stated in Appellant’s brief, except for the following name should include

Laura M. Carpenter as Appellate Attorney on behalf of the State of Texas:

Laura M. Carpenter
Appellate Attorney
Harrison County District Attorney’s Office
P.O. Box 776
Marshall, TX 75671
Telephone: 903-935-8408
Facsimile: 903-935-4836
laurac@co.harrison.tx.us




                                             ii
                                               TABLE OF CONTENTS


NAMES OF ALL PARTIES AND ATTORNEYS ............................................................... ii

INDEX OF AUTHORITIES .............................................................................................. iv

         CASES: ................................................................................................................ iv

         CODES, RULES, STATUTES: ............................................................................. iv

STATEMENT OF THE CASE .......................................................................................... 1

STATE’S REPLY to ISSUE NUMBER ONE. ................................................................... 1

STATE’S REPLY to ISSUE NUMBER TWO. .................................................................. 1

GENERAL STATEMENT OF THE FACTS………………………………………………...2-4

ARGUMENTS AND AUTHORITIES ................................................................................ 4

        ARGUMENT to ISSUE NUMBER ONE .............................................................. 4-6

         ARGUMENT to ISSUE NUMBER TWO ............................................................... 7

CONCLUSION……………………………………………………………………………………8

PRAYER ......................................................................................................................... 9

CERTIFICATE OF COMPLIANCE…………………………………………………………….9

CERTIFICATE OF SERVICE ........................................................................................ 10




                                                               iii
                               INDEX OF AUTHORITIES


CASES:


Ballard v. State, 23 S.W. 3d 178 (Tex.App.—Waco 2000, no pet.)………………….……8

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)…………………………....7

Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed. 177 (2004)……...5

Curry v. State, 228 S.W. 3d 292, 299 (Tex. App.—Waco 2007, pet. ref’d)…………….…6

Hartsfield v. State, 235 S.W.3d 772, 778 (Tex.Crim. App. 2007)………………………….7

Horton v. State, 394 S.W.3d 589, 592 (Tex. App. –Dallas 2012, no pet.)…………….…..7

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.App. 2007)…………………………………7

Jackson v. Virginia, 443 U.S. 307, 319 (1979)………………………………………………7

Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999)……….…..4

Malik v. State, 953 S.W. 2d 234, 240 (Tex.Crim.App 1997………………………………...7

Moore v. State, 169 S.W. 3d 467, 471 (Tex.App. Texarkana 2005, pet ref’d………….…5

Terry v. State, 397 S.W.3d 823, 833 (Tex. App. –Houston [14th Dist.] 2013, pet. ref’d)...5

Pointer v. Texas, 380 U.S. 400, 400-01, 85S.Ct. 1065, 13 L.Ed.2d 923 (1965)………....4

Poulus v. State, 799 S.W.2d 769, 770 (Tex. App.—Houston [1st Dist.] 1990, no pet.)….6

Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006)……………………………4, 5
.
Watson v. State, 421 S.W.3d 186 (Tex. App. San Antonio 2013………………………….5

CODES, RULES AND STATUTES:


U.S. Const. Amend. VI ……………………………..……………………………………….…4



                                            iv
                                STATEMENT OF THE CASE



        Appellant, Benjamin Robert Cain III , was indicted with a two count indictment.

CR 6.     Judge Morin granted Count I of the indictment to be suppressed. CR 41. After

a jury trial, Appellant was convicted by the jury in the 71st Judicial District Court in

Harrison County, Texas, on Count II for Manufacturing and Delivery of a Controlled

Substance of less than 28 grams. CR 75.        At the conclusion of the punishment phase,

the jury sentenced Appellant to 2 years in the Texas Department of Criminal Justice -

State Jail Division.

        Appellant presents his appeal in two issues.



                       STATE’S REPLY to APPELLANT’S ISSUE NO. 1

        The trial court did not err in allowing the presentation of a silent video tape

because a silent videotaped recording is not testimonial under the Confrontation

Clause.


                    STATE’S REPLY TO APPELLANT’S ISSUE NO. 2


        The evidence is both legally and factually sufficient to sustain a finding of guilty

beyond a reasonable doubt.




                                               1
                        GENERAL STATEMENT OF THE FACTS



              Appellant, Benjamin Robert Cain III, was indicted on two counts. Count I

alleged Appellant committed a charge of manufactured and delivery of a control

substance less than one gram. County II alleged Appellant committed a charge of

manufactured and delivery of a control substance less than 28 grams.

              Appellant filed a motion to suppress evidence on the delivery of a

controlled substance less than 1 gram, which is the allegation in Count I of the

indictment. On October 28, 2014, a suppression hearing was held and testimony and

argument regarding both Count I (an offense occurring on or about December 17, 2012)

and Count II (an offense occurring on or about December 13, 2012) was heard. The

judge granted the Motion to Suppress evidence of Count I and denied suppression of

any evidence of Count II. A corrected order reflecting this ruling was signed on June 18,

2015 (CR 41).

              On December 10, 2015, the trial before a jury began. RR 9. The State

offered a videotaped recording without audio that was taken by a confidential informant.

The confidential informant died prior to trial, and thus was unavailable to testify at trial.

(RR 20). Appellant objected to the admission of the video based upon the right of

denial of confrontation. (RR 30). Appellant objected to the testimony of the testifying

officer as to the contents of the tape during the time the officer was not present in the

video. (RR30).




                                               2
      The State began its case through testimony of Officer Steve Ashmore of the

Harrison County Sheriff’s Office. (RR 16). Ashmore testified that the Sheriff’s Office

employed a confidential informant, Dennis Boyd, to buy narcotics from the Appellant

based on Boyd’s tip. (RR 21). Ashmore testified that the Sheriff’s Office had used

Boyd numerous times and that Boyd never did anything that was not above par as a

confidential informant. (RR 50). Ashmore stated that in December 2012, he met with

Boyd in Waskom at a predetermined place to begin a narcotics buy from Appellant (RR

23). Ashmore searched Boyd and searched Boyd’s car and did not find any

contraband. (RR 24). Ashmore fitted Boyd with a recording device on his shirt and it

begins recording. (RR 25). Boyd drove to 365 Noble to meet the Appellant and

Ashmore testified that he saw Boyd pull into the yard, pull into the driveway, and enter

into the house. (RR 25). Ashmore stated that the Appellant was in the house for

about five minutes and then he saw Appellant leave the house. (RR 26-27). The State

published the videotaped recording, without sound, to the jury (RR 30-31). Ashmore

testified that when Boyd was in the house, it appeared in the video that Appellant was

counting out pills and putting them in a baggy and giving it to Boyd. (RR 35).

Ashmore states that he then met with Appellant again at the prearranged meeting place

where Boyd gave Ashmore the purchased pills. (RR 27). Ashmore testified that he is

seen on the video and that it shows Boyd handing the bag of pills to him, (RR 36).

Ashmore stops the video recording and then searches Boyd and Boyd’s car for

contraband and finds none. (RR 27).




                                            3
       Ashmore testified that the bag of pills were placed in a secured locker and that

Office Randy Payne delivered the pills on January 28, 2013, to the lab in Tyler for

testing. (RR 42). Ashmore identified the Appellant (RR 65.) Ashmore states that the

video was continuous and uninterrupted. (RR 66). Ashmore states that there wasn’t

any other person in the car with Boyd (RR 66). Ashmore states that Boyd did not make

any detours during the taping. (RR 66).

       Appellant’s counsel questioned Ashmore about his testimony regarding the

videotaped recording. Ashmore responds to counsel’s cross-examination by stating

that he believes that it shows money being put in Appellant’s pocket. (RR 70).



                  ARGUMENTS AND AUTHORITIES REPLY to ISSUE ONE

       The trial court did not err in allowing the presentation of a silent video tape

because a silent videotaped recording is not testimonial under the Confrontation

Clause.

       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, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999)). This includes a

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

       The Sixth Amendment to the United State Constitution provides that in all

criminal prosecutions that 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.


                                              4
400, 400-01, 85S.Ct. 1065, 13 L.Ed.2d 923 (1965). The United States Supreme

Court has ruled 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 had had a prior

opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36,

59, 124 S.Ct. 1354, 158 L.Ed. 177 (2004).         The question in this case is whether

a videotaped recording played without audio is testimonial or non-testimonial

       First, 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 v. Washington, 541 U.S. at

68. In Terry v. State, the court held that a statement is 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). Testimony is

testimonial if it is the functional equivalent of an ex parte, in-court statement.

Wall, 184 S.W.3d at 735.

       In Watson v. State, 421 S.W.3d 186 (Tex. App. San Antonio 2013), the

court held in a case with similar facts that the silent videotaped recording in

question was neither testimonial nor a statement, thus did not violate the

defendant’s right of confrontation. In this case, as in Watson, the silent


                                              5
videotape was an ex parte statement and was not a structured police

interrogation. See Crawford, 541 U.S. at 50-53. The videotape was not used in

an effort to establish or prove past events as discussed in Terry. See Terry, 397

S.W.3d at 833. 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). A silent videotape is no

different than a collection of photographs, and thus is more like a surveillance

video than a testimonial statement by any individual. Watson, 421. S.W.3d at

197.

       In Watson, the court referenced Poulus v. State, 799 S.W.2d 769, 770

(Tex. App.—Houston [1st Dist.] 1990, no pet.) where the court held that a silent

videotape showing Poulus performing field sobriety tests was not testimonial in

nature and did not offend the Fifth Amendment privilege against self-

incrimination. The court in Watson concluded that a silent videotape is not

testimonial under the Confrontation Clause for the same reason. Watson, 421

S.W.3d at 196.

       Appellant’s Issue Number One should be overruled because admitting a silent

videotape of a confidential informant purchasing contraband does not deny the

Appellant the right of Confrontation because the videotape is not testimonial.




                                             6
                   ARGUMENTS AND AUTHORITIES REPLY to ISSUE TWO


       The evidence is both legally and factually sufficient to sustain a finding of guilty

beyond a reasonable doubt.

       The State agrees with Appellant with the following law: In reviewing the legal

sufficiency of the evidence, the Court will review all the evidence in the light most

favorable to the verdict to determine whether any rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979); Hartsfield v. State, 235 S.W.3d 772, 778 (Tex.Crim. App. 2007). In doing so,

the court will give deference to the responsibility of the trier of fact “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inference from

basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.App. 2007)

(citing Jackson, 443 U.S. at 318-19).

       Legal sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W. 2d 234, 240

(Tex.Crim.App 1997); Horton v. State, 394 S.W.3d 589, 592 (Tex. App. –Dallas 2012,

no pet.). The hypothetically correct jury charge sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.” Malik, 953 S.W.2d at 240.

       In this case, the jury was presented with testimony from the witness (Officer

Ashmore) that the confidential informant (c.i.) was reliable; that the officer checked to

                                                7
ensure that there was no contraband on the c.i.; that the officer placed a recording

device on the c.i.; that the officer saw the c.i. pull into the driveway to meet the

Appellant; that the officer saw the c.i. go into the house to meet the Appellant; the officer

saw the c.i. leave the house; that the officer met with c.i. and took the purchased

contraband; that the officer stopped the recording that had been on continuously since

starting the recording; and that the officer checked to ensure that the c.i. had no other

contraband on him or in his car.

       The contraband that was given to the officer from the c.i. was tested. The lab

technician testified that the contraband was a controlled substance.

       The jury was able to view the silent videotape and determine what they

witnessed. Trial counsel stipulated that the Appellant was in the video. RR 34.

Moreover, absent affirmative evidence of fraud or tampering, any concerns concerning

gaps in the chain of custody only affect the weight to be give the evidence. Ballard v.

State, 23 S.W. 3d 178 (Tex.App.—Waco 2000, no pet.).



                                    CONCLUSION

       Appellant presents his argument that he was denied the right of confrontation

because the silent videotape recording was admitted. Case law is clear that silent

videotape recordings are not testimonial and thus if offered as evidence would not

violate one’s right of confrontation. Appellant further argues that that he was denied

the right of confrontation because the testifying officer commented on the silent




                                              8
videotape recording. This argument is errant because the testifying officer was

confronted by Appellant’s attorney and was cross-examined.

      The State prevailed in presenting the essential elements of the offense beyond a

reasonable doubt. Appellant’s argument concerning the lack of evidence was debated

and presented to the jury. Even so, the jury returned its verdict of guilty as charged in

the indictment.



                                        PRAYER

      The State respectfully prays this Court affirm the judgment below.



                                                       Respectfully Submitted
                                                       Coke Solomon
                                                       Criminal District Attorney
                                                       Harrison County, Texas



                                                By:    /s/ Laura M. Carpenter
                                                       Laura M. Carpenter,
                                                       Assistant District Attorney
                                                       Bar Card #08618050


                           CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief contains 2565 words according to the computer
program used to prepare the document.



                                                /s/ Laura M. Carpenter
                                                Laura M. Carpenter



                                            9
                             CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing State’s Brief has
been sent to the attorney for Appellant, Vernard Solomon, this 30th day of June, 2016.


                                               /s/ Laura M. Carpenter
                                               Laura M. Carpenter




                                          10
