             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00466-CR
     ___________________________

     ANGEL ARELLANO, Appellant

                     V.

         THE STATE OF TEXAS


On Appeal from County Criminal Court No. 6
           Tarrant County, Texas
         Trial Court No. 1555725


 Before Sudderth, C.J.; Gabriel and Kerr, JJ.
 Memorandum Opinion by Justice Gabriel
                          MEMORANDUM OPINION

      Appellant Angel Arellano appeals from his conviction for burglary of a vehicle

and argues that the admission of a security video under the business-records

exception to the hearsay rule was an abuse of discretion because it was not regularly

kept. Because the video met the requirements for admissibility under the exception,

its admission was not an abuse of discretion.

                                I. BACKGROUND

      Michael Brooks was working at his restaurant-supply store on July 24, 2018.

When he realized that he had left his phone in his car, which he had parked near the

front door, he went out to get it. Brooks saw that his “car had been not how [he] left

it”1 and that his phone was gone. Brooks knew that the restaurant across the street

had security cameras so he went there to see if the videos showed what happened to

his phone. The video showed a man getting into the passenger seat of Brooks’s car.

Two days later, the restaurant manager and Brooks saw a man in the restaurant who

looked like the man in the video. Brooks called the police; the man, later identified as

Arellano, was arrested.

      Arellano was charged by information with the misdemeanor offense of burglary

of a vehicle. See Tex. Penal Code Ann. § 30.04(a), (d). At the bench trial, the owner

of the restaurant, Edward Sullivan, testified regarding the security video.         The


      1
       Brooks stated that “[t]here was a Styrofoam cup with Coke spilled all over the
place and the console was open.”

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restaurant has sixteen cameras that record twenty-four hours a day. Each records on

an approximate thirty-day loop such that older portions of the video feed would be

recorded over with new video when a certain storage limit is reached.2 Sullivan

testified that the videos are made in the regular course of the restaurant’s business.

He agreed that the videos are not maintained or kept indefinitely because of the loop

process but stated that “[i]f something’s on there” or there is an “issue,” he regularly

downloads the excerpt onto a flash drive, which is then kept in the regular course of

business. If an excerpt is not downloaded, it eventually is recorded over. Sullivan

estimated that he downloads such excerpts between one and five times each week.

Sullivan also signed a business-records affidavit in which he swore that the video

excerpts from each camera at the time of the offense “were kept in the course of

regularly conducted business activity.”

      Arellano objected to the admission of the video excerpts because they were

“irregularly kept” and, thus, inadmissible hearsay. See Tex. R. Evid. 802, 803(6)(B).

The trial court overruled the objection and admitted the affidavit and video excerpts

into evidence. The trial court found Arellano guilty and imposed a 365-day sentence

with a $4,000 fine. On appeal, Arellano argues that the trial court’s admission of the




      2
       This means that “the cameras continually record, and any footage not
recovered after 30 days cannot be retained thereafter.” Price v. Peerson, No. CV 13-
3390 PSG (JEMx), 2014 WL 12558253, at *9 (C.D. Cal. Apr. 23, 2014) (order), aff’d,
643 F. App’x 637, 638 (9th Cir. 2016) (mem. op.).

                                           3
excerpts was an abuse of its discretion. See King v. State, 953 S.W.2d 266, 269 n.4 (Tex.

Crim. App. 1997).

                    II. ADMISSION OF VIDEO EXCERPTS

      Records of a regularly conducted activity are admissible as an exception to the

hearsay rule and, in the case of business records, are self-authenticating if the records

are accompanied by an affidavit. See Tex. R. Evid. 803(6), 902(10). Arellano asserts

that the video excerpts were inadmissible hearsay because they were not “kept in the

course of a regularly conducted business activity.”3 Tex. R. Evid. 803(6)(B). He

argues that because the restaurant’s security cameras record on a loop, any captured

video is eventually recorded over; thus, he contends that the security video was not

“kept” as required by rule 803(6).

      But Sullivan testified that if an incident occurs, he will download the video feed

from the relevant time period to a flash drive and then keep the drive in the regular

course of business. As the State points out, the video excerpts, which were kept in

the regular course of the restaurant’s business, are different from the entirety of the

restaurant’s security-camera feeds.      The State sought to introduce only the

downloaded excerpts from July 24, 2018; the restaurant undisputedly and regularly




      3
        Arellano does not dispute that the excerpts were self-authenticated through
Sullivan’s affidavit.

                                           4
kept such excerpts.4 Because the State satisfied the requirements of rule 803(6)(B) for

admission of the excerpts, the trial court did not abuse its discretion by admitting

them over Arellano’s objection. See, e.g., Lewis v. State, No. 02-16-00179-CR, 2017 WL

2686325, at *10–11 (Tex. App.—Fort Worth June 22, 2017, pet. ref’d) (mem. op., not

designated for publication); Caceres v. State, No. 14-15-00446-CR, 2016 WL 3554394,

at *3 (Tex. App.—Houston [14th Dist.] June 28, 2016, pet. ref’d) (mem. op., not

designated for publication); cf. United States v. Wells, 262 F.3d 455, 462–63 (5th Cir.

2001) (holding “oral testimony regarding the destroyed ledgers falls outside the

hearsay exception under [federal evidentiary] Rule 803(6). Therefore, the district

court clearly abused its discretion in admitting the hearsay testimony of Antoine with

respect to the drug ‘ledgers.’”).

                                    III. CONCLUSION

       We overrule Arellano’s issue and affirm the trial court’s judgment. See Tex. R.

App. P. 43.2(a).

                                                     /s/ Lee Gabriel

                                                     Lee Gabriel
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 26, 2019

       Sullivan averred in his affidavit and during his trial testimony that any
       4

downloaded video excerpts were regularly kept. Contrary to Arellano’s argument,
there was no conflict on this issue between Sullivan’s affidavit and testimony.

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