Affirmed and Memorandum Opinion filed January 28, 2020.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00144-CR

                 JONATHAN STEVEN GUEVARA, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1490487

                     MEMORANDUM OPINION

      Appellant Jonathan Guevara appeals his conviction for murder. A jury found
appellant guilty and assessed his punishment at 99 years in prison. In two issues,
appellant contends that the trial court erred in admitting a video of the murder into
evidence in both the guilt/innocence and punishment phases of trial. Appellant
contends that the video was not properly authenticated. We affirm.
                                    Background

      Appellant was charged with the murder of complainant Hector Diaz.
Evidence at trial suggested that appellant and two accomplices were members of
one gang while complaint was possibly a member of a different gang. Surveillance
video from a nightclub showed the four men together at the nightclub just after 2
a.m. on November 22, 2015, and then leaving together as a group. Another
surveillance video from an electronics store not far from the nightclub showed
appellant and one of the accomplices shoot complainant in a parking lot with a
handgun. In the video, complainant falls to the ground, bleeding profusely, and
does not move again. The video contains a date stamp of November 22, 2015 and a
time stamp of around 3:19 a.m.

      The State attempted to authenticate the electronics store video through the
testimony of Detective Sergeant Steven Murdock of the Houston Police
Department. Murdock stated that he was investigating at the scene on the night of
the shooting and noticed a camera through the front window of the electronics
store. The next day, he went back to the store and asked the owner if the camera
worked and whether Murdock could see the video footage. Murdock said that the
camera worked and the owner permitted him to watch the footage on the owner’s
computer system. Murdock then asked the owner to copy the video from the date
and time of the shooting onto a thumb drive. The owner complied, and when
Murdock later viewed the video from the thumb drive, it was exactly the same as
the video he had viewed on the store owner’s system and contained no alterations
or changes. Murdock further testified that Exhibit 55 was a copy of the video with
his initials on it and he had watched it again before trial. He averred that Exhibit 55
fairly and accurately depicts the video that he obtained from the electronics store.

      Defense counsel objected to the attempted authentication of the video. The

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trial judge overruled the objection and admitted Exhibit 55 into evidence.

                                Standards of Review

      As stated, appellant contends the trial court erred in admitting the video of
the murder into evidence in both the guilt/innocence and punishment phases of trial
because the State failed to properly authenticate the video. “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.” Tex. R. Evid. 901. Among other options, authenticity may
be established with evidence of “distinctive characteristics and the like,” which
include “[t]he appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the circumstances.”
Tex. R. Evid. 901(b)(4). Video recordings without audio are treated as photographs
and are properly authenticated when it can be proved that the images accurately
represent the scene in question and are relevant to a disputed issue. Fowler v. State,
544 S.W.3d 844, 849 (Tex. Crim. App. 2018).

      In a jury trial, it is the jury that ultimately determines whether an item of
evidence is what its proponent claims; the trial court need only make the
preliminary determination that the proponent of the item has supplied facts
sufficient to support a reasonable jury determination that the proffered evidence is
authentic. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).
Conclusive proof of authenticity before the admission of disputed evidence is not
required; Rule 901 merely requires some evidence sufficient to support a finding
that the evidence in question is what the proponent claims. Fowler, 544 S.W.3d at
848. The standard for admissibility is considered a liberal one. Id. at 849. The trial
court’s determination of whether the proponent has met the threshold requirement
is subject to appellate review for an abuse of discretion and should not be reversed

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so long as it is within the zone of reasonable disagreement. Id. There is no abuse of
discretion if the trial court “reasonably believes that a reasonable juror could find
that the evidence has been authenticated or identified.” Druery v. State, 225
S.W.3d 491, 502 (Tex. Crim. App. 2007).

                                     Discussion

      The State contends that the resolution of this case is controlled by the Court
of Criminal Appeals opinion in Fowler, which issued during the pendency of this
appeal. Fowler involved the admission of video evidence showing the defendant
purchasing certain items that were allegedly used in a burglary, and the receipt for
which was found near the stolen property. 544 S.W.3d at 846. A police officer
used the receipt to locate the store where the items were purchased and then was
able to find the relevant video footage by using the date and time on the receipt. Id.

      The Court in Fowler affirmed the trial court’s admission of the store video
over an authenticity objection based on circumstantial evidence demonstrating:
(1) the officer made an in-person request of the store manager to pull the
surveillance video from a specified date and time; (2) the video possessed the
distinctive characteristic of having a date and time stamp; (3) the date and time on
the video corresponded to the date and time on the receipt that was found near the
stolen property; and (4) the video pulled by the manager showed the defendant
purchasing the items listed on the receipt. Id. at 849-50.

      In the present case, evidence demonstrated the following analogous facts:
(1) Sergeant Murdock made an in-person request of the electronics store owner to
see video from a specific date and timeframe; (2) the video possessed the
distinctive characteristic of having a date and time stamp; (3) the date and time on
the video was within approximately an hour of the time video was taken at a
nightclub not far from the electronics store showing complainant, appellant, and
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two accomplices of appellant leaving together; and (4) the video pulled by the store
owner showed appellant shooting complainant in the parking lot where the murder
occurred. We agree with the State that under Fowler, the evidence presented was
sufficient to authenticate Exhibit 55. While the State certainly could have done
more—such as presenting testimony from the store owner concerning the workings
and maintenance of the video equipment—the State supplied evidence sufficient to
support a jury determination that the video was authentic. See id. (noting the State
could have done more to authenticate the video). Accordingly, the trial court’s
determination was within the zone of reasonable disagreement. We therefore
overrule appellant’s two issues.

      We affirm the trial court’s judgment.




                                      /s/       Frances Bourliot
                                                Justice



Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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