                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-16-00038-CR



       JAMEL MCLELLAND FOWLER, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 196th District Court
                Hunt County, Texas
               Trial Court No. 30456




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Moseley
                                                 OPINION
            Jamel McLelland Fowler was convicted of theft of a Kawasaki mule all terrain vehicle

(ATV) valued at $1,500.00 or more, but less than $20,000.00.1 On appeal, 2 Fowler challenges the

sufficiency of the evidence, claims error in the admission of extraneous offense evidence, and

claims reversible error by the trial court in admitting an unauthenticated video exhibit into

evidence. While we find the evidence sufficient to sustain Fowler’s conviction, we also find that

the trial court reversibly erred in admitting an unauthenticated video exhibit into evidence;

consequently we reverse the trial court’s judgment and remand to the trial court for a new trial.

I.          Trial Court Proceedings

            In 2014, Fowler was charged by three separate indictments with three separate crimes. In

the indictment which led to the conviction on appeal in this matter, Fowler was accused of stealing

the ATV from Paul Blassingame. The other two indictments alleged burglaries of buildings. In

one of the other charges, Fowler was accused of breaking into a building owned by William Martin

and stealing various items (Burglary Case No. 1);3 in the other, Fowler was charged with

burglarizing a building and stealing a trailer (Burglary Case No. 2). 4 All three indictments were


1
 See Act of May 29, 2011, 82d Leg., R.S., ch. 1234, § 21, 2011 Tex. Gen. Laws 3302, 3310 (amended 2015) (current
version at TEX. PENAL CODE § 31.03(e)(4)(A) (West Supp. 2016)).
2
 Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court
pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of
any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant issue. See TEX.
R. APP. P. 41.3.
3
 After the jury returned a guilty verdict in Burglary Case No. 1, Fowler moved to set aside the jury’s verdict, and the
trial court granted that motion. Fowler subsequently amended his request to a motion for new trial, which the trial
court also granted. The trial court ultimately entered a judgment of acquittal in Burglary Case No. 1.
4
    The State dismissed Burglary Case No. 2 after three days of testimony.

                                                            2
returned in Hunt County.            The State moved to try the cases together, alleging that they

“constitute[d] the same criminal episode because they [were] the repeated commission of similar

acts.” Fowler did not oppose consolidation of the three cases.

II.     The Evidence

        The facts of the three alleged offenses are intertwined and will have some bearing on the

issues Fowler presents in this appeal. As previously stated, this appeal is of Fowler’s conviction

of the theft of the ATV. Blassingame testified that the ATV had been located on property he

owned in Hunt County, which he visited often. In November 2014, he went to that property, where

he discovered that the ATV was missing, a fact that he duly reported to the Hunt County Sheriff’s

Office as a theft. Law enforcement officers in Royse City of neighboring Rockwall County found

the ATV on December 6, 2014, while investigating a burglary at a concrete supply business. The

ATV was identified by its vehicle identification number and returned to Blassingame.

        The ATV was found hidden in a wooded area beyond a field on property owned by

Lattimore Materials,5 a ready-mix concrete business that had suffered a series of burglaries over

the months preceding the discovery of the ATV. While investigating one of the burglaries that

occurred at Lattimore Materials in December 2014, Royse City policemen noticed tire tracks

(which they believed were made by an ATV) which led from the building that had been burglarized

to a tree line; just beyond the tree line was the copse of trees in which the ATV was hidden. There

was trash scattered on the ground around the ATV, among which was a receipt from a Family


5
 At the time of the burglaries, the Lattimore Materials facility located on the subject property was non-operational.
Duane Wetteland, the area manager for Lattimore Materials, described other facilities owned by the company and
explained that business needs determined whether the facility on the property at issue was operational or not.
Wetteland testified that he periodically checked on the facility when it was non-operational.
                                                         3
Dollar store that included the time and date of its issuance. Further, within fifteen feet or so of the

ATV, the policemen found packaging in which a box cutter had been located, and a box cutter was

one of the items listed on the Family Dollar store receipt. Royse City Police Officer Jaime Torrez

took the receipt to the store that had issued it and was able to view the store’s surveillance video

recording showing what appeared to be the purchase memorialized by the receipt. The store was

unable to duplicate the recording or render it to a format Torrez could take with him, so he and an

officer he was training used Torrez’ department-issued camera to record the surveillance footage

as it played on the store’s video monitor. The footage’s date and time information corresponded

generally to the date on the receipt. Particularly of note to the State’s case, the recording showed

a man entering the store then completing a purchase, and it was the State’s theory at trial that that

man was Fowler.

         In addition to those circumstances, in the weeks leading up to the December discovery of

Blassingame’s ATV, officers had found a blue Nissan Xterra vehicle in the area under suspicious

circumstances. On November 3, 2014, at about 1:45 a.m., Royse City Police Sergeant Ryan Curtis

and Rockwall County Deputy Brad Dick found the truck parked on a dirt road behind some

industrial businesses in a poorly lit area.6 Virginia Cox (eventually named as a co-defendant with

Fowler in one or more of his indictments) was sitting in the Xterra. Cox’s explanation to the law

enforcement officers of her whereabouts was that she and her boyfriend had run out of gasoline

and that he had gone back to a gas station for fuel. Because one of the businesses (Four Brothers,



6
 Curtis described the area where the Xterra was parked as “a dirt road that you really can’t even travel through.” He
continued, “I mean, I’m unaware of any vehicles being able to travel through it for years.”
                                                         4
a mower and tractor dealer) behind which Cox’s vehicle was parked had been the victim of

multiple burglaries in the past, Curtis was suspicious of Cox. Curtis saw several sets of bolt cutters

in the Xterra7 and got another police officer to go to the nearest gas station. That officer

encountered no one purporting to be in search of gasoline for a stalled vehicle. When Curtis asked

Cox to attempt to start the vehicle, it started with no problem (thereby casting doubt on Cox’s story

that it had no fuel).

            At about 6:00 a.m. that same day, Royse City Police Officers William Potter and Tim West

observed the same blue Xterra in another part of Royse City parked on the side of a local county

road. As previously, the vehicle was occupied only by Cox, and when she was questioned by the

policemen, she made reference once again to a male companion. Later that morning, Potter and

West again encountered the Xterra, this time containing both Cox and Fowler. Between these two

encounters, Potter had responded to a call regarding an alleged theft at the Four Brothers mower

and tractor dealership. The dealership representatives called Potter’s attention to three mowers,

each of which had their gasoline caps removed and none of which held any gasoline in their tanks.8

            After that, Potter returned to the Xterra and questioned Fowler about involvement in any

theft of gasoline, which Fowler denied. From our reading of the record, Potter took no further




7
    The issue of consent to the search of the vehicle was not challenged by Fowler at trial or in this appeal.
8
 Potter actually said the gas cans were empty; from the context, he likely was referring to the mowers’ tanks, but he
never testified that anyone at Four Brothers told him there had been gas in the tanks the night before. Nonetheless,
Potter did testify that he was responding to a report of stolen gasoline, and he left the dealership telling “management
that [he] had a suspect and that [he] was going to go back and talk with them.”

                                                              5
action with respect to Fowler after that point.9 There was another encounter between West and

Potter, on the one hand, and Fowler and Cox, on the other, on either November 3 or 10 wherein

Fowler allowed the officers to look inside the Xterra. At that time, the officers noticed that there

were three bolt cutters, binoculars, and a pry bar inside the vehicle. When questioned about those

items, Fowler attempted to explain the presence of the tools in his vehicle by saying he was an

electrician. That explanation failed to quell West’s suspicions of Fowler because (as West

explained) he ran a construction company and was aware of the tools and equipment used by

electricians, and those items would not ordinarily be used by electricians.10 This encounter

occurred near Lattimore Materials, which had suffered multiple recent burglaries.

            Testimony about the burglaries at Lattimore Materials revealed that a part of the method

of operation of the burglars was to sever cables or heavy wires and remove them from the site. In

addition, the burglars had cut padlocks on the gates of the premises more than once. While

investigating one of the burglaries, Torrez found three sets of bolt cutters near some of the cut

cables, and he suspected that the bolt cutters had been used to cut the cables.




9
 A recording of that encounter, recorded via the dash camera of Potter’s police car, was admitted into evidence. There
was much discussion and argument over the recording. The exhibit provided to this Court has several files; there are
three video recordings, each less than thirty seconds in duration, which contain no audio. The final file is an
audio/video recording that is two minutes and twenty-eight seconds in duration which captured Potter asking Fowler
about any involvement in theft of gasoline from Four Brothers. Potter suggested during this exchange that the business
had surveillance videos. When Fowler stated that he was done talking with the officer, the video ended. From the
discussions at the bench by the parties and the trial court, it appears that this audio/video recording was played for the
jury.
10
     Fowler’s objection to this testimony was sustained, but he did not request an instruction to disregard.
                                                              6
III.   Store’s Surveillance Video Insufficiently Authenticated

       Fowler contends that because the video surveillance footage from the Family Dollar store

was not properly authenticated, the trial court erred by admitting it into evidence. We agree.

       The challenged video recording was a copy of another recording from a surveillance

camera at the Family Dollar store. The Family Dollar store receipt found by Torrez near the stolen

ATV evidencing the sale of a box cutter (the packaging of which had likewise been found near the

ATV) revealed the time and date of its issuance. Torrez took the receipt to the issuing Family

Dollar store and discovered that the store had a surveillance video recording from the date and

time the receipt was issued. The surveillance video recording captured the image of a man the

State alleged to be Fowler entering the Family Dollar store a few minutes before the time and date

set out on the receipt found by Torrez near the ATV, then, several minutes later, buying items.

However, the video made by the Family Dollar store was not saved in a format that could be

copied, so Torrez (and another officer who was accompanying him) focused Torrez’ police-

department-issued video camera on the screen displaying the Family Dollar video and made a

video recording of a portion of the Family Dollar surveillance 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(a). “Video recordings or motion pictures sought to be used in

evidence are treated as photographs and are properly authenticated when it can be proved that the

images reflect reality and are relevant.” Cain v. State, 501 S.W.3d 172, 174 (Tex. App.—

Texarkana 2016, no pet.) (citing Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988)).

                                                7
        “In ruling on the admission or exclusion of photographic evidence, the trial court is

accorded considerable discretion.” Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App.

1988). “The trial judge does not abuse his or her discretion in admitting evidence where he or she

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). “[A]uthentication or

identification . . . . is satisfied by evidence sufficient to support a finding that the matter in question

is what the proponent claims.” TEX. R. EVID. 901(a).

        In Kephart v. State,11 Kephart was charged with possession of illegal drugs. At her trial,

the State introduced a video recording acquired when police searched a motel room occupied by

two people, neither of whom was Kephart.                Kephart appeared in the video, incrementally

displaying greater and greater degrees of intoxication. Beneficial to the State’s case, there was

also footage of Kephart talking with one of the people in whose motel room the video was

discovered. “On the table in the video is a white substance and a baggie with what appears to be

marihuana.” Kephart, 875 S.W.2d at 320. The video also contained an audible conversation

between Kephart and one of the motel room occupants. Id.

        The Texas Court of Criminal Appeals ruled that the video had not been sufficiently

authenticated and that the trial court committed harmful error by admitting it to evidence. While

a police officer testified that the video was an accurate copy of the original,12 “he had no personal


11
  Kephart v. State, 875 S.W.2d 319 (Tex. Crim. App. 1994) (per curiam), overruled on other grounds by Angleton v.
State, 971 S.W.2d 65 (Tex. Crim. App. 1998).
12
  The original tape from the motel room “was of poor quality and had been ‘eaten’ by a VCR.” Kephart, 875 S.W.2d
at 320 n.2.

                                                       8
knowledge of where or when the tape had been made” and “could not also state that the tape

accurately represented the actual scene or event at the time it occurred.” Id. at 322–23.

        The State’s copy of the Family Dollar surveillance video falls victim to the same analysis

as the video in Kephart. Torrez adequately demonstrated that the recording he made of the store’s

surveillance monitor was a duplicate copy of the relevant part of the original surveillance

recording. However, there was no evidence presented to show that the store’s surveillance video

was what the State purported it to be (an accurate recording or rendition of events in that particular

store on a particular day at a particular time). While the date and time on the lower center part of

the screen on Torrez’ recording of the store recording generally corresponds with the date and time

on the receipt found near the ATV, there was no evidence that the surveillance system was working

properly on the date in question, that its on-screen clock was correctly set and functioning properly,

or that the original accurately portrayed the events that purportedly occurred at the time and on the

date shown in the video recording.13 Without such proof, there was no showing that the store’s

video recording was made on the same day as the receipt or that it accurately portrayed what the

State alleged that it portrayed. Because the Family Dollar’s original surveillance recording was

not properly authenticated, the trial court abused its discretion in admitting the video recording

into evidence.



13
  Cf. Page v. State, 125 S.W.3d 640, 648–49 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (finding sufficient
evidence of authentication where the sponsoring witness explained how the store’s digital camera system worked,
testified that he obtained the recorded images from the system shortly after the robbery there at issue, reviewed the
recording with the police, copied the recording onto a videotape, gave the videotape to the officers, viewed the
videotape before trial, and concluded that it had not been altered); see also Standmire v. State, 475 S.W.3d 336, 344
(Tex. App.—Waco 2014, pet. ref’d) (suggesting criteria to consider when analyzing authentication of security video
“such as those used after hours in convenience stores and freestanding automatic teller machines”).
                                                         9
       We must now assess the error in admitting the evidence to determine whether it harmed

Fowler, i.e., whether it affected his substantial rights. “Generally, errors resulting from admission

or exclusion of evidence are nonconstitutional.” Gotcher v. State, 435 S.W.3d 367, 375 (Tex.

App.—Texarkana 2014, no pet.) (citing Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App.

2007)). We see nothing in this circumstance that would elevate the erroneous admission of the

video to the level of a constitutional violation of Fowler’s rights. See TEX. R. APP. P. 44.2(b). As

nonconstitutional error, harm resulted if Fowler’s substantial rights were affected. See Johnson v.

State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002); TEX. R. APP. P. 44.2(b). “[A] substantial right

is affected when the error had a substantial and injurious effect or influence in determining the

jury’s verdict.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (quoting King v.

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). In making our assessment, we consider

everything in the record, the nature of the evidence supporting the verdict, the character of the

alleged error, and how it relates to other evidence in the record. Motilla v. State, 78 S.W.3d 352,

355 (Tex. Crim. App. 2002).

       Essentially, the State’s case can be outlined as follows:

       1.      Blassingame reported his ATV stolen.

       2.      The ATV, identified by its vehicle identification number, was found (after
       investigating a seemingly unrelated burglary).

       3.      Within feet of the ATV was a receipt from a Family Dollar store which indicated
       that a box cutter had been purchased at a certain time and date. A box cutter package was
       also discovered nearby.

       4.     Law enforcement officials took the Family Dollar store receipt to the issuing store
       and were shown a security surveillance video recording of the store which corresponded to
       the time and date on the receipt.
                                                 10
       5.     Officers recorded sections of the security video recording which they believed
       corresponded with the receipt’s information and used this to identify Fowler as a subject.

       6.     The officers’ video recording of the Family Dollar video recording was presented
       as evidence in trial.

       7.       Presumably, the jury compared the person on the video with Fowler’s appearance
       at trial and other evidence presented and concluded that Fowler was the person who had
       purchased the box cutter and dropped the paper evidence of the purchase near the stolen
       ATV. This tied Fowler to the stolen ATV.

       Here, the error undoubtedly affected Fowler’s substantial rights and was, therefore,

harmful. The Family Dollar video recording was the evidence linking Fowler to the stolen ATV.

We, therefore, sustain this point of error.

III.   Sufficiency of the Evidence

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment 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) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield

v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal

sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–

18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences 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); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

                                                11
        Legal sufficiency of the evidence is measured by the elements of the offense as defined by

the measure known as the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997). The “hypothetically correct” jury charge is “one that accurately 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.” Id.

        “[A] conviction can be supported solely by circumstantial evidence.” Kuciemba v. State,

310 S.W.3d 460, 462 (Tex. Crim. App. 2010). As the Court of Criminal Appeals has stated,

        [E]vidence merely tending to affect the probability of the truth or falsity of a fact
        in issue is logically relevant. Moreover, the evidence need not by itself prove or
        disprove a particular fact to be relevant; it is sufficient if the evidence provides a
        small nudge toward proving or disproving some fact of consequence.

Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990).

        Moreover, in performing a review of the sufficiency of the evidence, we must consider all

of the evidence admitted at trial, even if that evidence was improperly admitted. Moff v. State, 131

S.W.3d 485, 489–90 (Tex. Crim. App. 2004). Consequently, we consider the key evidence of

Fowler’s guilt—the Family Dollar video recording—in our sufficiency analysis, even though, as

we have already concluded, that evidence was improperly admitted at trial.14

        In this case, the evidence was sufficient for a rational jury to have found beyond a

reasonable doubt that Fowler stole Blassingame’s ATV. To reiterate that evidence, we note that

the stolen ATV was found under suspicious circumstances, hidden in a wooded area near a


14
 We frankly acknowledge that, absent this video recording, the evidence would be legally insufficient to support
Fowler’s conviction, its existence being vital to the conviction.
                                                      12
business which had sustained multiple burglaries, and there was evidence that bolt cutters had been

used in those burglaries. Multiple bolt cutters were found in Fowler’s truck. After one of the

burglaries, ATV tracks were found leading off through a field, and just beyond where the tracks

ended, officers found Blassingame’s ATV. Fowler and/or the truck Fowler was driving at the time

were found a few times in odd hours and under suspicious circumstances in the neighborhood of

that business. The Family Dollar receipt found near the stolen ATV was linked to a transaction at

the store. Most importantly, the Family Dollar video depicted a person making the transaction that

was linked to the ATV whom the jury could have easily determined was Fowler.15 This evidence

is legally sufficient to support Fowler’s conviction. We, therefore, overrule this point of error.16




15
  Fowler argues that the trial court realized it had erred in admitting some evidence and “tried to correct it during
trial.” Fowler argues, “[T]he court made statements to the effect that he allowed certain evidence in because the State
made representations about what the evidence would be that did not turn out to be accurate.” His argument continues,
“The trial court even announced on the record that it had made a mistake in allowing certain evidence to be admitted
before the jury.” The portions of the record to which Fowler cites in making this argument concern the trial court
excluding evidence of a trailer, which the State argued was used by Fowler to move the ATV to the location where it
was found. The court found that no connection had been made between that trailer and Fowler and excluded testimony
and evidence related to the trailer. As we pointed out above, the State was trying three different offenses involving
three different transactions and time periods, so there was a great deal of evidence to present. We find nothing in the
record suggesting Fowler opposed the State’s motion to consolidate the three cases. In fact, he appears to have agreed
to the consolidation.
16
  Because resolution of the issue is dispositive, we need not address Fowler’s point of error challenging the
introduction of extraneous offense evidence.

                                                         13
         Nevertheless, in light of the erroneous and harmful admission of the Family Dollar video

recording, we reverse the trial court’s judgment and remand this case for a new trial.17




                                                        Bailey C. Moseley
                                                        Justice

Date Submitted:            October 6, 2016
Date Decided:              January 27, 2017

Publish




17
  The United States Supreme Court has clearly and unequivocally distinguished between the consequences that flow
from reversals caused by trial error, such as in this case, and those resulting from insufficient evidence to convict:

         [R]eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a
         decision to the effect that the government has failed to prove its case. As such, it implies nothing
         with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant
         has been convicted through a judicial process which is defective in some fundamental respect, e. g.,
         incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When
         this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from
         error, just as society maintains a valid concern for insuring that the guilty are punished.

Burks v. U.S., 437 U.S. 1, 15 (1978).

                                                           14
