                                                                               ACCEPTED
                                                                              01-15-00213
                                                                FIRST COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                      10/5/2015 2:19:36 PM
                                                                     CHRISTOPHER PRINE
                                                                                    CLERK

                        NO. 01-15-00213-CR

                  IN THE COURT OF APPEALS            FILED IN
                                              1st COURT OF APPEALS
          FOR THE FIRST JUDICIAL DISTRICT OF TEXASHOUSTON, TEXAS
                         AT HOUSTON           10/5/2015 2:19:36 PM
                                                   CHRISTOPHER A. PRINE
                                                         Clerk

ANTHONY MICHAEL LONGORIA            §              APPELLANT
                                    §
VS.                                 §
                                    §
THE STATE OF TEXAS                  §              APPELLEE

__________________________________________________________________

                 APPEAL FROM CAUSE NO. 1378394
                  IN THE 337TH DISTRICT COURT
                    OF HARRIS COUNTY, TEXAS
___________________________________________________________________

                       APPELLANT’S BRIEF
___________________________________________________________________



                                    ADAM B. BROWN
                                    SBOT No. 01728540
                                    300 Main, Ste. 200
                                    Houston, Texas 77002
                                    (713) 223-0051
                                    (713) (FAX)
                                    adambrownlaw@yahoo.com

                                    ATTORNEY FOR APPELLANT

APPELLANT REQUESTS ORAL ARGUMENT
                                    Identity of Parties and Counsel

      The following is a complete list of all parties to the trial court’s judgment, and the
names and addresses of all trial and appellate counsel:

Anthony Michael Longoria ................................................................................... Appellant


State of Texas ......................................................................................................... Appellee


James Tucker Graves ............................................. Appellant’s Appointed Counsel at Trial
402 Main St., Ste. 200
Houston, Texas 77002

Abigail Anastasio ................................................... Appellant’s Appointed Counsel at Trial
50 Briar Hollow Lane, Suite 235 W.
Houston, Texas 77027

Coby Leslie ..................................................................... Assistant District Attorney at Trial
Harris County District Attorney’s Office
1201 Franklin
Houston, Texas 77002

Adam B. Brown ................................................ Appellant’s Appointed Counsel on Appeal
300 Main, Ste. 200
Houston, Texas 77002

Alan Curry ................................................................ Assistant District Attorney on Appeal
Harris County District Attorney’s Office
1201 Franklin
Houston, Texas 77002

Hon. Renee Magee .............................................................................................. Trial Judge




                                                              ii
                                                      Contents

                                                                                                                    Page

Identity of Parties and Counsel ....................................................................................

Table of Contents .........................................................................................................

List of Authorities ........................................................................................................

Statement of the Case ...................................................................................................

Issues Presented............................................................................................................

         Issue One: The trial court erred in providing a limiting instruction in
         the jury charge in violation of Texas Rule of Evidence 105.

         Issue Two: The trial court erred in providing a limiting instruction in
         the jury charge in violation of Article 36.14 of the Texas Code of
         Criminal Procedure.

         Issue Three: The trial court erred in providing a limiting instruction in
         the jury charge in violation of Appellant’s Sixth Amendment right to
         counsel.

         Issue Four: The trial court abused its discretion in admitting a video
         recording that was not authenticated pursuant to Texas Rule of
         Evidence 901.

Summary of the Arguments .........................................................................................

Background Facts .........................................................................................................

Arguments and Authorities ..........................................................................................

    Issues One, Two, and Three ...................................................................................



                                                           iii
         A.       Facts...........................................................................................................

         B.       Standard of Review ...................................................................................

         C.       The trial court erred in including the limiting instruction
                   in the jury charge. .....................................................................................

         D.       The error infringed on Appellant’s Sixth Amendment right to
                  counsel.. ....................................................................................................

         E.       Harm Analysis ..........................................................................................

                  1. Constitutional Error.. ............................................................................

                  2. Harm Analysis under the Almanza Standard ........................................

    Issue Four ...............................................................................................................

         A.       Facts...........................................................................................................

         B.       Standard of Review ...................................................................................

         C.       The trial court abused its discretion in admitting the video
                  recording because it was not authenticated... ............................................

         D.       The error harmed Appellant’s substantial rights. ......................................

Prayer ...........................................................................................................................

Certificate of Service ....................................................................................................

Certificate of Compliance ............................................................................................




                                                               iv
                        List of Authorities

Cases:

Statutes, Codes and Constitutional Provisions:




                                  v
To the Honorable Justices of the Court of Appeals:

                             Statement of the Case

      Appellant Anthony Michael Longoria was charged by indictment with the

first degree felony offense of aggravated robbery, alleged to have occurred on

February 21, 2013. CR20. Appellant entered a plea of not guilty and a jury found

him guilty. CR105; 127. The jury assessed a sentence of 20 years imprisonment.

CR127. Appellant filed a motion for new trial, which was overruled by operation of

law. CR135. Appellant filed timely written notice of appeal. CR131.

                                Issues Presented

            Issue One: The trial court erred in providing a
            limiting instruction in the jury charge in violation of
            Texas Rule of Evidence 105.

            Issue Two: The trial court erred in providing a
            limiting instruction in the jury charge in violation of
            Article 36.14 of the Texas Code of Criminal
            Procedure.

            Issue Three: The trial court erred in providing a
            limiting instruction in the jury charge in violation of
            Appellant’s Sixth Amendment right to counsel.

            Issue Four: The trial court abused its discretion in
            admitting a video recording that was not
            authenticated pursuant to Texas Rule of Evidence
            901.




                                         6
                           Summary of the Arguments

       Issues One, Two, and Three: The trial court erred in providing a limiting

instruction for extraneous offense evidence over Appellant’s objection during the

guilt-innocence phase. Appellant did not request a limiting instruction when the

evidence was admitted, so the evidence was admitted for all purposes under Texas

Rule of Evidence 105. Thus, the limiting instruction was not law “applicable to the

case” under Article 36.14 of the Code of Criminal Procedure, and should not have

been given. Moreover, because foregoing a limiting instruction is a matter of trial

strategy, the trial court violated Appellant’s Sixth Amendment right to counsel by

overriding counsel’s strategic decision. The instruction harmed the defense because

it focused the jury’s attention on evidence Appellant wished to minimize, and

instructed the jury to consider the evidence for specific purposes.

      Issue Four: The trial court erred in admitting during the punishment phase a

video recording that was not properly authenticated. The authenticating witness had

no personal knowledge that the recording equipment was functioning properly.

Additionally, the authenticating witness failed to establish how the equipment was

activated, how it was deactivated, and how the recording was accessed and

reproduced for trial. The trial court abused its discretion in admitting the evidence

because the State failed to establish that the recording system was capable of


                                           7
producing an accurate recording. Because the video recording captured a

conversation in which Appellant and the codefendant schemed to mislead the

police, discussed the incriminating evidence, and demonstrated a conspicuous lack

of remorse, Appellant was harmed by its admission.

                               Background Facts

      The complainant, Branislav Kupresakovic, testified that during the evening

of February 21, 2013, he was at his Katy home with his wife and his 21-year-old

son when he heard a knock at the front door. 3RR15-20. Through the peephole the

complainant observed a young Hispanic male, whom he assumed to be a friend of

his son. 3RR20. When complainant opened the door a little bit the male pushed

against the door. 3RR20-21. Two additional males appeared; the complainant

recalled that one was carrying a handgun and the other was carrying a shotgun.

3RR20-21; 31. One of the additional males had glasses and a dark scarf covering

his face. 3RR32. The males pushed the door open and entered. 3RR20-21. One of

the intruders told the complainant to get down on the ground and tried to tie him up

with tape. 3RR23.

      The complainant yelled to his wife, who ran into the master bedroom along

with the complainant’s son. 3RR23; 42. Once in the bedroom, the complainant’s

son, Slaven Kupresakovic, retrieved the complainant’s handgun from under the bed.


                                         8
3RR43. When one of the intruders entered the bedroom, Slaven shot him several

times. 3RR49-51. Slaven never saw the other two intruders, who ran out of the

house at the sound of gunfire. 3RR53.

      A neighbor noticed two males running across his neighbor’s yard in a

suspicious manner and decided to follow them in his car. 3RR76. While males

circled the neighborhood in an SUV, the neighbor reported them to the Sheriff’s

department and continued to follow them until numerous patrol cars arrived and

stopped the vehicle. 3RR76-77.

      The two apprehended suspects were identified as Brandon Trey King and

Appellant Longoria. 3RR114-15. The third intruder, who was killed at the scene of

the home invasion, was identified as Douglas Enriquez. 3RR115. King and

Appellant were detained in a patrol car and their conversation recorded. 3RR113-

114. Sergeant C. Clopton of the Homicide Division arrived at the scene where King

and Appellant had been apprehended and reviewed the recording. 3RR113-14. The

two suspects were then transported to the Homicide Office. 3RR115.

      Appellant initially agreed to be interviewed and denied involvement, but then

indicated that he wished to terminate the interview and consult with counsel.

3RR117. After speaking with King, who had admitted involvement, Appellant told

Sergeant Clopton that he wanted to tell the truth. 3RR118-21. In a video-recorded


                                         9
interview (State’s Exhibit 64), Appellant stated that he was visiting from out of

town and staying with his cousin King. King introduced Appellant to his friend

Douglas Enriquez, who came up with the idea to rob King’s marijuana dealer.1

Appellant did not want to do it, but King could not be dissuaded so Appellant went

along to protect King. The plan was for Enriquez to knock on the door, kick the

door down, and get the people on the floor; King and Appellant were to “just stand

there and look intimidating.” Appellant and King wore gloves and masks and

Enriquez carried the gun. Once inside the residence, Enriquez handed the gun to

Appellant and went to the back room to round up the residents. Appellant

immediately heard gunshots and he and King fled. Appellant threw the gun out the

window of King’s vehicle a short distance away. SX64

       In the vehicle investigators located a backpack containing two dark-colored

bandanas, another backpack containing duct tape, and three black air-soft BB-gun

pistols. 3RR105-108. The following day, a local resident found a loaded handgun in

the street a short distance from the scene and turned it over to the sheriff’s office.

3RR89-93. The gun was found to have been reported stolen in Wiley, Texas, where

Appellant resided.2 3RR142-43.



1  Slaven Kupresakovic initially testified that he did not sell marijuana, but thereafter testified
that he had sold marijuana to King on several occasions. 4RR14.
2 Codefendant Brandon Trey King testified that he visited family in Wiley prior to the robbery.

                                                10
      Codefendant Brandon Trey King testified for the defense. King testified that

he was 18 years old at the time of the offense and Appellant was 20. 3RR158. King

and Appellant picked up Douglas Enriquez on February 21, 2013, with the plan of

going to the mall. 3RR164-65. When King drove by the house of his marijuana

dealer, Enriquez suggested robbing him. 3RR166. Enriquez exited the car first and

King followed him; as they approached the house King first noticed that Enriquez

had a gun in his waistband. 3RR168; 200. King was wearing a bandana and

carrying duct tape. 3RR168. Appellant followed King and tried to convince him to

leave and go the mall, as planned. 3RR169. King testified that Anthony looked

“shocked” when Enriquez handed him the gun after entering the house. 3RR171-72.

When King heard shots, Appellant grabbed his arm and they ran to the car.

3RR173-74. After they were apprehended and placed in a patrol car, King told

Appellant that they should tell police a fabricated story that they had just dropped

off a friend named Jackson; but thereafter at the Sheriff’s office King told

Appellant to “save himself and tell the truth.” 3RR176, 204-205. King testified that

the backpack containing the two bandanas was his, and that the backpack

containing duct tape belonged to Appellant. 3RR189-91.

                           Arguments and Authorities


3RR193.

                                          11
             Issue One: The trial court erred in providing a
             limiting instruction in the jury charge in violation of
             Texas Rule of Evidence 105.

             Issue Two: The trial court erred in providing a
             limiting instruction in the jury charge in violation of
             Article 36.14 of the Texas Code of Criminal
             Procedure.

             Issue Three: The trial court erred in providing a
             limiting instruction in the jury charge in violation of
             Appellant’s Sixth Amendment right to counsel.

      A.     Facts

      Appellant objected to the inclusion of the following limiting instruction for

extraneous offenses in the jury charge:

             You are further instructed that if there is any evidence
             before you in this case regarding the defendant’s
             committing an alleged offense or offenses other than the
             offense alleged against him in the indictment in this case,
             you cannot consider such evidence for any purpose unless
             you find and believe beyond a reasonable doubt that the
             defendant committed such other offense or offenses, if
             any, and even then you may only consider the same, in
             determining the motive, opportunity, intent, preparation,
             plan, knowledge, identity, or absence of mistake or
             accident of the defendant, if any, in connection with the
             offense, if any, alleged against him in the indictment and
             for no other purpose.

CR99. Appellant urged that “there really hasn’t been any evidence of extraneous

offenses” and requested that the instruction be deleted from the charge. 4RR12. The

trial court refused the request, stating that there was “very minimal” evidence of

                                          12
extraneous offenses, namely, that Appellant had used marijuana, and evidence that

the gun used in the robbery had been stolen in Appellant’s hometown of Wiley,

Texas. 4RR12.

       B.     Standard of Review

       To review claims of jury charge error, an appellate court must first ask

whether there was error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex.

Crim. App. 2009). If there was error and if the appellant objected to the error at

trial, “reversal is required if the error is ‘calculated to injure the rights of [the]

defendant,’ ” meaning that “there must be some harm to the accused from the

error.” Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009) (quoting

Almanza v. State, 686 S.W.2d 157, 161 (Tex. Crim. App. 1984). “[A]ny harm,

regardless of degree, is sufficient to require reversal.” Druery v. State, 225 S.W.3d

491, 504 (Tex. Crim. App. 2007).

       C.     The trial court erred in including the limiting instruction in the
              jury charge.

       In Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007), the Court of

Criminal Appeals examined whether a trial court must, sua sponte, include a

reasonable-doubt and limiting instruction in the jury charge when the State offers

evidence of an extraneous offense at the guilt stage of a criminal trial. The Court

noted that Article 36.14 of the Code of Criminal Procedure requires the trial judge

                                             13
to deliver to the jury “a written charge distinctly setting forth the law applicable to

the case.” Id. at 247. But the Court acknowledged that a trial judge does not have a

duty to instruct the jury on all potential defensive issues, lesser-included offenses,

or evidentiary issues, because these are issues that “frequently depend upon trial

strategy and tactics.” Id. at 249. The Court further noted that Texas courts have held

that the decision of whether to request a limiting instruction concerning the proper

use of certain evidence, including extraneous offenses, may be a matter of trial

strategy. Id., citing Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.-Beaumont 1996,

pet. ref'd); Blevins v. State, 884 S.W.2d 219, 230 (Tex. App.-Beaumont 1994, no

pet.). For example, a party might well intentionally forego a limiting instruction as

part of its “deliberate ... trial strategy to minimize the jury’s recollection of the

unfavorable evidence.” Id., quoting United States v. Johnson, 46 F.3d 1166, 1171

(D.C. Cir. 1995); United States v. Rhodes, 62 F.3d 1449, 1453–54 (D.C. Cir.1995).

Moreover, if a defendant does not request a limiting instruction under Rule 105 at

the time that evidence is admitted, then the trial judge has no obligation to limit the

use of that evidence later in the jury charge. Id. at 251; Hammock v. State, 46

S.W.3d 889, 894 (Tex. Crim. App. 2001). Once evidence has been admitted without

a limiting instruction, it is part of the general evidence and may be considered for

all purposes. Id.; McGowan v. State, 375 S.W.3d 585, 593 (Tex. App.-Houston


                                            14
[14th Dist.] 2012, pet. ref'd).

       Accordingly, the Court concluded that a limiting instruction concerning the

use of extraneous offense evidence should be given in the guilt-stage jury charge

“only if the defendant requested a limiting instruction at the time the evidence was

first admitted.” Id. The Court observed that if the trial counsel’s strategy was to

forego objection and a limiting instruction so as not to emphasize the evidence, this

strategy was “eminently successful” because the appellant was convicted of a lesser

included offense. Id. at 254.

       In the instant case, Appellant did not request a limiting instruction when the

evidence of his marijuana use and the stolen gun was admitted. Accordingly, under

Rule of Evidence 105, the evidence was admitted for all purposes. Thus, the

limiting instruction was not law “applicable to the case” under Article 36.14 of the

Code of Criminal Procedure, and should not have been given. Delgado, 235 S.W.3d

at 250-52.

       D.     The error infringed on Appellant’s Sixth Amendment right to
              counsel.

       By insisting on including the instruction, over Appellant’s objection, the trial

court interfered with Appellant’s apparent trial strategy of not drawing attention to

the evidence. As noted by the Court of Criminal Appeals in Delgado, the decision

of whether to request a limiting instruction concerning the proper use of certain

                                          15
evidence, including extraneous offenses, is properly a matter of trial strategy,

namely, “to minimize the jury’s recollection of the unfavorable evidence.” Id. at

249. Numerous courts have found this strategy to be valid. See Delgado, supra, at

254; Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.-Beaumont 1996, pet. ref'd)

(“[Absent anything in the record explaining counsel's reasoning], we can only

conclude his trial strategy may have been not to draw further attention to the

extraneous offenses”); Curry v. State, 861 S.W.2d 479, 484-85 (Tex. App.-Fort

Worth 1993, pet. ref'd) (holding counsel not ineffective for not requesting limiting

instruction during punishment, because instruction was requested when extraneous

offense evidence was admitted and strategy may have been not to remind the jury of

the evidence); Agbogwe v. State, 414 S.W.3d 820, 838 (Tex. App.-Houston [1st

Dist.] 2013, no pet.) (“It is reasonable to conclude ... [that] defense counsel decided

that seeking an instruction to disregard Ozoh’s testimony would only bring further

attention to it”); McNeil v. State, 452 S.W.3d 408, 415 (Tex. App.—Houston [1st

Dist.] 2014), pet. ref’d (trial counsel’s choice not to request a burden-of-proof

instruction and a limiting instruction about extraneous offenses was pursuant to

valid strategy to avoid drawing further attention to defendant's potential extraneous

offenses or misconduct).

      The Court of Criminal Appeals has observed:


                                          16
              The trial judge ordinarily should not interfere with the
              attorney-client relation by inquiring into the matter of
              strategy and tactics. Such an inquiry should be made only
              if from all appearances there could be no plausible basis
              in strategy or tactics for counsel’s actions, and then the
              inquiry should be made out of the presence of the jury
              and of the prosecutor. A reply by counsel that his actions
              are based on strategic or tactical considerations that will
              become apparent later in the trial should satisfy the court's
              inquiry, and counsel should not be required to reveal his
              strategy and tactics at that time. Full inquiry should be
              made only if after the trial from all appearances there still
              is no plausible basis in strategy or tactics for his actions.

Ex parte Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App. 1978) (footnote omitted).

       These observations are grounded in the Sixth Amendment’s guarantee that

counsel be given “wide latitude . . . in making tactical decisions.” Strickland v.

Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984).

Courts considering a challenge to counsel’s performance pursuant to the Sixth

Amendment must employ a standard in which judicial scrutiny of counsel’s

performance is highly deferential, with a “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689. There is no legal basis for a court to apply a less

deferential standard when making judgments concerning an attorney’s strategy in

the course of trial.

       “One of the primary purposes of the Sixth Amendment right to counsel is to


                                           17
preserve the integrity of the attorney-client relationship once it has been

established.” State v. Frye, 897 S.W.2d 324, 327 (Tex. Crim. App. 1995); Patterson

v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). By supplanting

counsel’s strategy with the court’s own judgment concerning a jury charge on a

defensive issue, a court violates these Sixth Amendment principles. A judge should

not interfere, or even inquire, unless “there could be no plausible basis in strategy or

tactics for counsel’s actions.” Ewing, 570 S.W.2d at 945.

      The strategy employed here has been repeatedly recognized as not just

plausible, but valid and demonstrably successful. See, e.g., Delgado, 235 S.W.3d at

254 (finding the strategy to be an “eminently successful one”). In fact, the trial

court acknowledged that the extraneous offense evidence was “very minimal”

(4RR12), circumstances that would further justify the strategy. In these

circumstances, the trial court violated Appellant’s Sixth Amendment rights in

overriding counsel’s sound judgment.

      The Supreme Court examined a similar issue in Lakeside v. Oregon, 435 U.S.

333, 335, 98 S. Ct. 1091, 1092, 55 L. Ed. 2d 319 (1978). In an escape prosecution

in which the defendant did not testify, the trial court instructed the jury, over

defense objection, that the defendant’s decision not to testify should not be

considered and should not give rise to any adverse inference. 435 U.S. at 335, 98


                                           18
S.Ct. at 1092. The defense objected on the grounds that the instruction itself called

attention to the defendant’s failure to testify. 435 U.S. at 335, 98 S.Ct. at 1093. On

appeal, the defendant urged that in certain circumstances, such as when a defense is

presented through several witnesses, the jury may not notice a defendant’s failure to

testify and the instruction would serve only to draw attention to it. 435 U.S. at 340-

41, 98 S.Ct. at 1095. The defendant challenged the trial court’s inclusion of the

instruction over defense objection on Fifth and Sixth Amendment grounds. Id.

      The Court found that including the instruction over defense objection did not

violate the Fifth Amendment’s privilege against self-incrimination because the jury

was not likely to disregard the instruction; thus, the instruction could not violate the

principle it was designed to protect. Id.

      The defendant also challenged the instruction on Sixth Amendment grounds,

asserting that including the instruction over defense objection interfered with trial

strategy. 436 U.S. at 341; 98 S.Ct. at 1095. The Court noted that in an adversary

system of criminal justice, there is “no right more essential than the right to the

assistance of counsel.” 435 U.S. at 341, 98 S. Ct. at 1096. But the Court held that in

this case there was no Sixth Amendment violation because the instruction (1) was

accurate, (2) was permissible, and (3) concerned a basic constitutional principle that

governs the administration of criminal justice. 435 U.S. at 341-42, 98 S. Ct. at 1096


                                            19
(the Sixth Amendment does not “confer upon defense counsel the power to veto the

wholly permissible actions of the trial judge”).

      The instant case is distinguishable in several important respects. First, the

limiting instruction was not permissible – the Court of Criminal Appeals has

mandated that that a limiting instruction concerning the use of extraneous offense

evidence should be given in the guilt-stage jury charge “only if the defendant

requested a limiting instruction at the time the evidence was first admitted.”

Delgado, supra, at 249.

      Second, the limiting instruction did not concern a basic constitutional

principle, but only an evidentiary issue concerning the proper use of certain

evidence. Id. As such, the Court of Criminal Appeals has held that the decision to

forego the instruction is a strategic decision within the discretion of defense

counsel.

      Third, the instruction in the instant case was fundamentally different in

content from the challenged instruction in Lakeside, which instructed the jury that it

was not to consider the defendant’s failure to testify for any purpose. In contrast,

the instruction in the instant case permitted the jury to consider evidence of

extraneous offenses for certain purposes if there was proof beyond a reasonable

doubt. Assuming the jury followed the instruction, it would draw the jury’s


                                          20
attention to the very evidence that counsel wanted to minimize. For example,

Appellant admitted in his police interview (SX64) to using marijuana and that

stealing marijuana was possibly the motive for the robbery. Thus, the jury was

likely to find the required burden of proof met, and to find the evidence relevant for

the listed permissible purposes (motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident). The instruction in the

instant case actually frustrated the defense strategy, whereas the Lakeside

instruction did not. See Lakeside, 435 U.S. at 340, 98 S. Ct. at 1095 (finding it

“very doubtful” that the jury would “affirmatively give weight to what they have

been told not to consider at all”). Accordingly, the trial court’s interference with

trial strategy in this case amounted to a violation of the Sixth Amendment.

      D.     Harm Analysis

             1. Constitutional Error

      Because the error impinged on Appellant’s constitutional rights, Texas Rule

of Appellate Procedure 44.2(a) applies. TEX. R. APP. P. 44.2(a); Snowden v. State,

353 S.W.3d 815, 818 (Tex. Crim. App. 2011).

      Rule of Appellate Procedure 44.2(a) requires reversal in constitutional error

cases “unless the court determines beyond a reasonable doubt that the error did not

contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a). The focus is


                                          21
not on whether the jury verdict was supported by the evidence, but rather whether

the error at issue might possibly have prejudiced the jurors’ decision-making.

Pollard v. State, 255 S.W.3d 184, 190 (Tex. App.–San Antonio 2008), aff'd, 277

S.W.3d 25, 33 (Tex. Crim. App. 2009); Langham v. State, 305 S.W.3d 568, 582

(Tex. Crim. App. 2010). Error is not harmless “simply because the reviewing court

is confident that the result the jury reached was objectively correct.” Snowden, 353

S.W.3d at 819. Nonetheless, the presence of “overwhelming evidence of guilt is a

factor to be considered.” Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App.

2002). Other factors to consider may include the nature of the error, whether it was

emphasized by the State, the probable implications of the error, and the weight the

jury would likely have assigned to it in the course of its deliberations. Snowden, 353

S.W.3d at 822. The Court should examine the entire record in a neutral manner, not

“in the light most favorable to the verdict.” Hernandez v. State, 80 S.W.3d 63, 65

(Tex. App.–Amarillo 2002, no pet.) (quoting Harris v. State, 790 S.W.2d 568, 586

(Tex. Crim. App. 1989)).

      In this case there can be no finding beyond a reasonable doubt that the error

did not influence the jury’s decision making. Appellant’s defense was that he was

surprised by Enriquez’s impulsive plan; he was unaware that Enriquez had a gun;

he did not have the intent to commit robbery; and he only went along in order to


                                         22
protect his cousin (4RR19-20). The physical evidence – the presence of bandanas

and duct tape in King’s vehicle – suggests that the plan was not conceived

spontaneously, but this evidence does not necessarily contradict Appellant’s

statement and King’s testimony that Appellant was not a party to any planning.

      Instructing the jury regarding its consideration of extraneous offenses likely

called the jury’s attention to Appellant’s admitted marijuana use. Moreover, the

instruction directed the jury to consider this evidence as relevant to Appellant’s

motive, intent, and absence of mistake. In response to the court’s sua sponte

instruction, defense counsel was forced to argue in closing that Appellant’s

marijuana use had not been proved beyond a reasonable doubt and could not be

considered (4RR23). But this argument was likely rejected, because Appellant

himself admitted to occasional marijuana use. The instruction also could have

directed the jury’s attention to evidence suggesting that Appellant had stolen the

gun used in the robbery, which further undermined Appellant’s defense.

      For these reasons, the instruction may have influenced the jury’s decision

making process and contributed to Appellant’s conviction; accordingly, reversal is

required.

             2. Harm Analysis under the Almanza Standard

      Because Appellant preserved his complaint, the Court must reverse if the


                                          23
error resulted in any harm, regardless of degree. Almanza, 686 S.W.2d at 161,

Druery, 225 S.W.3d at 504. To gauge harm, the court reviews (1) the entire jury

charge; (2) the state of the evidence, including the contested issues and weight of

probative evidence; (3) the argument of counsel; and (4) any other relevant

information revealed by the record of the trial as a whole. Id. These factors require

a finding of harm in this case.

      As argued above, the sole contested issue was whether Appellant was merely

present to look after his younger cousin, or whether he intended to participate in the

robbery. The instruction likely caused the jury to focus on Appellant’s admitted

marijuana use and to connect this evidence with the permissible purposes suggested

in the instruction -- most notably, motive. The instruction thus brought the jury’s

attention to the very evidence that the defense wanted to minimize. Counsel’s

attempt to neutralize the instruction by arguing that the burden of proof was not met

was likely unsuccessful. Nothing else in the jury charge served to cure the harm.

      It bears noting that the numerous courts that have rejected claims of

ineffective assistance of counsel by validating this strategy could not have come to

that conclusion without implicitly finding that a limiting instruction, in some

circumstances, is not entirely benign. See, e.g., Delgado, supra, at 254; Ryan v.

State, 937 S.W.2d 93, 104 (Tex. App.-Beaumont 1996, pet. ref'd) (“[Absent


                                          24
anything in the record explaining counsel's reasoning], we can only conclude his

trial strategy may have been not to draw further attention to the extraneous

offenses”); Curry v. State, 861 S.W.2d 479, 484-85 (Tex. App.-Fort Worth 1993,

pet. ref'd) (holding counsel not ineffective for not requesting limiting instruction

during punishment, because instruction was requested when extraneous offense

evidence was admitted and strategy may have been not to remind the jury of the

evidence); Agbogwe v. State, 414 S.W.3d 820, 838 (Tex. App.-Houston [1st Dist.]

2013, no pet.) (“It is reasonable to conclude ... [that] defense counsel decided that

seeking an instruction to disregard Ozoh's testimony would only bring further

attention to it”); McNeil v. State, 452 S.W.3d 408, 415 (Tex. App.—Houston [1st

Dist.] 2014), pet. ref’d (trial counsel's choice not to request a burden-of-proof

instruction and a limiting instruction about extraneous offenses was pursuant to

valid strategy to avoid drawing further attention to defendant's potential extraneous

offenses or misconduct); see also Daniel D. Blinka, Ethics, Evidence, and the

Modern Adversary Trial, 19 Geo. J. Legal Ethics 1, 19 (2006) (noting that opponent

of evidence will “frequently forego limiting instructions for fear that they will only

emphasize the damaging inference”).

      If, as the Court of Criminal Appeals has readily acknowledged, foregoing a

limiting instruction to minimize the jury’s recollection of unfavorable evidence


                                          25
constitutes a valid strategy, Delgado, 235 S.W.3d at 250, then the instruction must,

in some cases, be capable of causing “some harm.” This is such a case, because the

evidence of extraneous conduct was, in the trial court’s own words “very minimal,”

and the jury might very well have overlooked the evidence but for the instruction.

Moreover, the instruction directed the jury to consider the unfavorable evidence for

certain specific purposes, such as motive, to the detriment of Appellant’s defense.

Accordingly, Appellant suffered some degree of harm, requiring reversal.



             Issue Four: The trial court abused its discretion in
             admitting a video recording that was not
             authenticated pursuant to Texas Rule of Evidence
             901.

      A.     Facts

      During the punishment phase, the State offered State’s Exhibit 62, a video

recording of a conversation between Appellant and codefendant King captured by

patrol car recording equipment shortly their arrests. Sergeant Clopton, the

authenticating witness, testified that:

     most patrol vehicles are equipped with digital cameras;

     Deputy McHugh’s vehicle was equipped with a camera;

     most of these cameras are activated automatically by certain triggers, such as
      turning on the emergency lights or sirens, or driving at a certain speed;


                                          26
    the cameras can also be activated manually;

    once activated, the cameras record until “deactivated”;

    when Clopton arrived at the scene, he viewed a video that was made by
     McHugh’s patrol car camera prior to his arrival;

    State’s Exhibit 62, a DVD, was a fair and accurate copy of the recording
     Clopton had viewed at the scene.

5RR24-27.

     Appellant objected to the admission of the recording on the grounds that the

State failed to demonstrate that the recording had not been tampered with or where

it originated from. The defense further objected that Officer McHugh’s testimony

was necessary to authenticate the video because Sergeant Clopton could not

establish whether the recording device was working properly or if the original

recording was accurate or altered. 5RR27-28. The trial court overruled the

objection and admitted the exhibit. 5RR28.

     The exhibit was partially published but the audio equipment malfunctioned;

the equipment was subsequently fixed so that the jury could play the recording

during deliberations. 5RR28-31. In closing argument, the State urged the jury to

play the recording and described its most damaging contents in detail. 5RR48-50.

     The video depicts the patrol car responding to the scene of the traffic stop,

and then proceeding to the scene of the home invasion. Once there, the hood is

                                        27
raised, blocking the camera’s view. During the portion of the video that contains

the conversation between Appellant and King, which begins at approximately

21:52:00 of the time display, the video depicts only the raised hood of the vehicle.

SX62.

      B.     Standard of Review

      A trial court’s evidentiary rulings regarding expert testimony are reviewed

under an abuse of discretion standard. Gallo v. State, 239 S.W.3d 757, 765 (Tex.

Crim. App. 2007); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.

2000) (expert testimony). A trial court abuses its discretion when its decision lies

“outside the zone of reasonable disagreement.” Walters v. State, 247 S.W.3d 204,

217 (Tex. Crim. App. 2007).

      C.     The trial court abused its discretion in admitting the video
             recording because it was not authenticated.

      Authentication is a condition precedent to admissibility that may be satisfied

by “evidence sufficient to support a finding that the matter in question is what its

proponent claims.” TEX. R. EVID. 901(a). Rule of Evidence 901 governs the

authentication requirement for the admissibility of evidence and is the appropriate

analysis for the authentication of recordings. Angleton v. State, 971 S.W.2d 65, 69

(Tex. Crim. App. 1998).

      Subsection (a) states that the authentication requirement for admissibility of

                                          28
evidence is satisfied by proof sufficient to support a finding that the matter in

question is what its proponent claims it is. TEX. R. EVID. 901(a). Subsection (b)

provides a nonexclusive list of methods to authenticate evidence. One example

given is the testimony of a witness with knowledge that a matter is what it is

claimed to be. TEX. R. EVID. 901(b)(1). Another method is showing “a process or

system used to produce a result and showing that the process or system produces an

accurate result.” TEX. R. EVID. 901(b)(9).

      Applying these provisions, there are at least two ways to authenticate

photographic evidence including videos. Standmire v. State, --- S.W.3d ----, 2014

WL 3882940, at *6 (Tex. App.—Waco Aug. 7, 2014, pet. ref’d). One way is by

testimony that the photo or video is an accurate representation of the object or scene

in question. Id.; Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). In

this situation, the authenticating witness is not required to be the person who

operated the camera or video equipment, but must have been a witness to the

contents of the recording. Id.

      If, as in this case, the authenticating witness did not witnesses the events

recorded, a video may be authenticated by testimony that the process or system that

produced the photo or video is reliable. Id.; Reavis v. State, 84 S.W.3d 716, 720

(Tex. App.-Fort Worth 2002, no pet.). This method is commonly used with security


                                          29
videos. Id. For authentication of such photographic or video evidence, the

authenticating witness usually (1) describes the type of system used for recording

and whether it was working properly; (2) testifies whether he reviewed the video or

photos; (3) testifies whether he removed the video or device that stores the photos;

and (4) testifies whether the video or photos have been altered or tampered with.

Id.; see also Randell v. State, No. 07–11–00493–CR, 2013 WL 309001, *2–3, 2013

Tex.App. LEXIS 742, *5–7 (Tex.App.-Amarillo Jan. 25, 2013, pet. ref'd); Warren

v. State, No. 08–11–00029–CR, 2012 WL 651642, *1–2, 2012 Tex.App. LEXIS

1544, *3 (Tex.App.-El Paso Feb. 29, 2012, no pet.) (not designated for

publication).

      In the instant case, Sergeant Clopton testified that he viewed the video when

he arrived at the scene of the arrest, but his testimony did not establish (1) whether

the equipment was working properly; (2) how the recording device was activated;

(3) how it was deactivated; (4) what type of memory device the recording was

stored on; (5) what type of equipment he used to view the recording; (6) if the

recording was stored on a removable memory device, who removed the memory

device; (7) whether the memory device was tampered with prior to Clopton’s

viewing of the recording; (8) how and by whom the recording was reproduced onto

DVD. While Sergeant Clopton was generally knowledgeable about the recording


                                          30
equipment installed in patrol vehicles; he had no personal knowledge of the

reliability of the equipment in Deputy McHugh’s vehicle.

      A review of cases in which video recordings were found to be properly

authenticated by a witness with knowledge of the recording system indicate that

Clopton’s testimony falls far short in providing the necessary information about

how the recording was created and reproduced.

      In Reavis v. State, 84 S.W.3d 716 (Tex.App.-Fort Worth 2002, no pet.), the

Fort Worth Court of Appeals held that a trial court did not abuse its discretion in

admitting a security videotape into evidence even though the authenticating witness

at trial had not personally witnessed the events depicted on the videotape. Id. at

720. The authenticating witness testified as follows: on the morning of the day of

the offense, he loaded the videotape into 24-hour-time-lapse recorder and pressed

“record;” he removed the videotape 15 minutes after the defendant was

apprehended; he viewed it with police officers; and he viewed tape again just prior

to his trial testimony and what he saw was identical to what he had seen on tape on

day of offense. Id.

      In the instant case, Sergeant Clopton did not establish how the equipment

was activated or deactivated; who accessed the recording; how they accessed it;

what it was stored on; or how it was reproduced for trial. Moreover, Sergeant


                                          31
Clopton could not establish whether the recording had been tampered with prior to

his arrival or whether Deputy McHugh’s recording equipment was functioning

properly. Clopton’s basic knowledge of the sheriff department’s recording

equipment and his viewing of the recording are insufficient to demonstrate that the

system produced an accurate recording.

      In Page v. State, 125 S.W.3d 640 (Tex. App.—Houston [1st Dist.] 2003, pet.

ref'd), a grocery store’s videotape of a robbery was sufficiently authenticated to be

admitted into evidence at an aggravated robbery trial, even though the store

employee who testified to accuracy of tape had not witnessed events that occurred

in videotape. The employee testified that the grocery store’s “brand-new digital

recording system” recorded images from 16 video cameras and automatically saved

those images onto a computer hard drive. Id. at 648. The employee further testified

that he accessed the digital recording system’s hard drive shortly after the robbery

and viewed the recording of the robbery with police officers. Id. The employee then

copied the recording of the robbery onto a videotape and gave it to the officers. Id.

Additionally, the employee viewed the videotape before trial and testified that it had

not been altered in any way. Id. The Court held that this evidence was sufficient to

enable a reasonable juror to conclude that the videotape was “what the State

claimed it to be” and that the trial court did not abuse its discretion in admitting the


                                           32
videotape of the robbery into evidence. Id. at 648-49.

      In contrast, all the State established about the recording in the instant case is

that the equipment may be activated in a variety of ways, and that Clopton viewed

the recording once at the scene and viewed a copy of it once before trial. The State

did not establish how the equipment was activated in this instance, what type of

device it was stored on, who accessed the recording, how Clopton viewed it at the

scene, or how and by whom it was reproduced for trial.

      The Fifth Circuit has similarly required more detail regarding the creation

and duplication of photographic evidence. In United States v. Taylor, 530 F.2d 639,

641–42 (5th Cir.), cert. denied, 429 U.S. 845, 97 S.Ct. 127, 50 L.Ed.2d 117 (1976),

the court held that photographs were properly authenticated by government

witnesses who were not present during the actual robbery but testified as to the

manner in which the film was installed in the camera, how the camera was

activated, the fact that the film was removed immediately after the robbery, the

chain of its possession, and the fact that it was properly developed and contact

prints made from it. Id. at 642-43.

      The deficiencies in Clopton’s testimony are more critical here because the

recording is essentially an audio recording. The open hood of the patrol car blocks

the camera’s view, so there is no picture to verify that the tape is continuous and


                                          33
uninterrupted, a factor courts have considered in finding a video recording

authenticated. For example, in Ballard v. State, 23 S.W.3d 178, 180 (Tex. App.-

Waco 2000, no pet.), officers fitted an undercover informant with video recording

camera and activated the camera as the informant exited the officer's vehicle. Id.

After purchasing cocaine from the defendant, the informant then met back with an

officer, who turned the video recording off. Id. In determining that the videotaped

recording was properly authenticated under Rule 901, the court noted that the

recording was “continuous and uninterrupted,” the officer corroborated specific

events in the video recording, and the fact-finder could compare the recorded video

with the physical appearance of the defendant. Id. at 182; see also Watson v. State,

421 S.W.3d 186, 192 (Tex. App.—San Antonio 2013, pet. ref’d) (video recording

was authenticated where the officers had personal knowledge of the contents

contained on the videotape, the tape was continuous and uninterrupted, the officers

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

recorded video with the physical appearance of the defendant, and there was no

evidence of tampering).

      In the instant case, there is no video action to confirm that the recording is

continuous and uninterrupted, so simply viewing the video is not sufficient to

demonstrate that it is accurate and has not been altered. Thus, it was more important


                                          34
to establish that the recording equipment was reliable and to establish how the

recording was created, accessed, and reproduced.

      A number of unpublished cases also demonstrate that more detail regarding

the creation and reproduction of the recording is necessary to establish the

reliability of the recording system when there is no witness to the recorded events.

In Warren v. State, No. 08–11–00029–CR, 2012 WL 651642 (Tex. App.-El Paso

Feb.29, 2012, no pet.) (mem. op., not designated for publication), a burglary

prosecution, the court found a security DVD to be sufficiently authenticated by

testimony from a maintenance supervisor of the apartment complex, who explained

how the security cameras work and testified that the he removed the SD card from

the camera at issue, reviewed its contents with the complainant, and copied four

images onto a DVD, which was given to the complainant. Id. at *2. The

complainant then gave the DVD to the police. Id. The supervisor testified that the

camera at issue was capable of making true and accurate recordings and that the

DVD contained a true and accurate depiction of images taken by the camera. Id. He

stated that he did not “alter or change the images as [he] initially saw them from the

original SD card in any way.” Id. The supervisor reviewed the DVD before trial and

determined that it was “a true and accurate depiction and recording of the four

images that [he] saved off that SD card.” Id. In addition, the complainant was asked


                                         35
whether he altered the DVD that he received from maintenance personnel, and

answered, “No, it was an exact copy on a nonrewritable DVD that maintenance had

given me, containing four clips.” Id.

      In Randell v. State, 07-11-00493-CR, 2013 WL 309001, at *2 (Tex. App.—

Amarillo Jan. 25, 2013, pet. ref’d) (mem. op., not designated for publication), a

security video was sufficiently authenticated by a manager’s testimony that he

reviewed the video after being informed of the theft; that he or the store director can

“burn off” parts of the video for the police; that he did so in this case and provided

the relevant part to the police; that the recording was made simultaneously with the

actions recorded on the video; that he reviewed the contents of the copy prior to

testifying; that it had not been tampered with; that the recording was made on a

device capable of making an accurate recording; that he was trained and capable of

operating the computers or devices that record images from the surveillance

cameras; and that the recording offered was an accurate representation of the events

“as viewed by the camera.” Id. at *2.

      In Garcia v. State, 05-07-00540-CR, 2008 WL 2655622, at *4 (Tex. App.—

Dallas July 8, 2008, pet. ref'd) (mem. op., not designated for publication), a security

video was properly authenticated by an apartment owner’s testimony that on the

date of the murder he had given police a security videotape. Id. The videotape was


                                          36
recorded by a camera at his apartment complex during the hours surrounding the

offense. Id. The owner, who had installed the camera himself, testified that the

camera was working properly on the night of the offense and he had personally

loaded the videotape into the camera. Id. He noted that the date stamp on the

videotape was correct, except for the year 2008, which he had not programmed to

show the correct year of 2006. Id. He further noted that the time stamp on the

videotape was accurate “within a few minutes.” Id. The owner further testified that

he personally checks the videotapes to be sure the security cameras at the apartment

complex are working. Id.

      In Teeter v. State, 05-06-00309-CR, 2007 WL 510356 (Tex. App.—Dallas

Feb. 20, 2007, no pet.) (mem. op., not designated for publication), a video recording

made on a school bus was properly authenticated by the transportation custodial

director for the school district. Id. at *9. The director described that each school bus

has a “camera eye” or lens that is located just above and to the right of the bus

driver and a video cassette recorder (VCR) in a locked box that is bolted to the floor

or the underside of the dashboard. Id. He testified that the VCRs are inspected

regularly to make certain they are operating properly, and each VCR is activated

when the school bus ignition is turned on and automatically stops when the school

bus ignition is turned off. Id. The director retrieved the videotape from the bus, put


                                          37
it in his desk, and gave it to the police chief. Id. The director testified that he

watched the videotape after he retrieved it and again before testifying, and the

videotape was in the same or similar condition and there were no additions or

deletions to the videotape. Id. Additionally, the school children's testimony

described the events that occurred on the school bus, and these events appeared on

the video. Id.

       In Brown v. State, 14-03-01265-CR, 2005 WL 363950 (Tex. App.—Houston

[14th Dist.] Feb. 17, 2005, pet. ref'd) (mem. op., not designated for publication), a

store security video was properly authenticated by the manager’s testimony that he

came to the store, stopped the videotape, and watched five to ten minutes of the tape

to see if it had captured the incident. Id. at *4. The manager and two other witnesses

were present when the videotape was removed from the recorder in the store's

surveillance room; all three witnesses testified that the outside cannister of the

videotape was damaged. Id. The witnesses also testified that the reel of tape inside

was twisted and stretched in one section but that they did not believe that the tape

itself was damaged. Id. at *4-5. An investigator for the Harris County District

Attorney's Office also testified that the outside cannister of the tape had been

damaged but the tape itself had not been. Id. at *5. The investigator replaced the

damaged canister with an undamaged canister and left the original reel of tape, then


                                            38
re-recorded the actual occurrence from State's Exhibit 4–A into a twenty-minute

version which was admitted as State's Exhibit 6 and shown to the jury. Id. Both the

manager and the investigator testified that the exhibit is a true and accurate

representation of the original. Id.

      As these cases demonstrate, authenticating witnesses must provide testimony

demonstrating, at a minimum, how the recording was accessed and reproduced.

Additionally, personal familiarity with the recording equipment is necessary to

demonstrate that the equipment was capable of producing an accurate recording.

Sergeant Clopton’s testimony wholly failed to provide this critical information.

Clopton’s testimony fell far short of the detail provided in the cases discussed;

accordingly, the trial court’s ruling admitted the exhibit was outside the zone of

reasonable disagreement.

      D.     The error harmed Appellant’s substantial rights.

      An appellate court reviews an erroneous admission of evidence as non-

constitutional error, subject to a harm analysis under rule 44.2(b) of the Texas Rules

of Appellate Procedure. TEX. R. APP. P. 44.2(b). The court disregards non-

constitutional error unless it affects the substantial rights of the defendant. Id. “A

substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271


                                           39
(Tex. Crim. App. 1997). Neither the State nor the appellant has the burden to show

harm when an error has occurred; rather, after reviewing the record, it is the

appellate court’s duty to assess harm. Schutz v. State, 63 S.W.3d 442, 444 (Tex.

Crim. App. 2001).

      A conviction or punishment should not be overturned for such error if, after

examining the entire record, there is a fair assurance that “the error did not have a

substantial and injurious effect or influence in determining the jury’s verdict.”

Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). But the court must

reverse a conviction or punishment for non-constitutional error if it is unclear

whether the result of the trial was free from substantial influence of the error.

Barshaw v. State, 342 S.W.3d 91, 94 (Tex. Crim. App. 2011); Burnett v. State, 88

S.W.3d 633, 637–38 (Tex. Crim. App. 2002)).

      When conducting a harm analysis, the court considers the entirety of the

record, including jury instructions and closing arguments. Motilla v. State, 78

S.W.3d 352, 355–56 (Tex. Crim. App. 2002). In determining whether the error was

harmless, the court considers the nature of the evidence supporting the verdict, the

character of the alleged error, and how the error might be considered in connection

with other evidence in the case. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.

App. 2000). Other relevant factors may include whether the State emphasized the


                                          40
error and whether the erroneously admitted evidence was cumulative. Id.

      The only other evidence at punishment was documentation of Appellant’s ten

prior convictions. SX66-76. The State presented evidence of a second degree felony

conviction for possession of a controlled substance; three state jail felony

convictions for theft of a firearm, burglary of a building, and unauthorized use of a

motor vehicle; and six misdemeanor convictions. All of the offenses were

committed when Appellant was a teenager, and none involved violence. Defense

counsel pointed out in argument that the felony possession case involved a

prescription ADHD drug. 5RR38.

      While Appellant’s criminal history certainly factored into the jury’s decision,

the video recording contained very damaging evidence that was at least equally

important. In response to a relevance objection, the State pointed out that the video

“shows his involvement in the planning and it shows his response after the other

robber was killed and they’re laughing and joking about it in the back seat of that

patrol car. It goes directly to his character. It’s exactly the kinds of things the jury

needs to hear about.” 5RR23.

      The State highlighted in closing the most damaging portions and argued that

they showed Appellant to be a calculating and remorseless criminal. 5RR48-49. The

State pointed out that the video recorded Appellant and codefendant King


                                            41
conspiring to get their story straight and fabricating a story about dropping off a

friend in the neighborhood. While this evidence was cumulative of King’s trial

testimony, several additional damaging portions were not cumulative.

      For example, the State also pointed out that they discussed the incriminating

evidence, namely, the duct tape and the gun Appellant had wiped and tossed. The

State argued that this conversation indicated that the robbery was planned, rather

than spontaneous. 5RR48-49.

      The State emphasized that they discussed being “nice to the cops,” and

“acting like little kids.” The State argued that this was the “same act that he put on

when he was giving his confession,” and that the jury should not fall for

Appellant’s polite demeanor in the confession video because it was “a game” and “a

ruse.” 5RR48-49.

      The State also directed the jury’s attention to the fact that they were laughing

and joking about being on the show “Cops,” which demonstrated that they were not

scared or worried. The State argued that their demeanor showed a stunning lack of

remorse, considering that a firearm had been discharged and they had abandoned

their friend. The State urged that “[t]hese are the kinds of things that show you what

kind of person he really is.” 5RR48-49.

      In addition to the damaging portions discussed by the State in argument, the


                                          42
video also captured Appellant and King using offensive language, singing, and

discussing whether the complainant’s wife was “hot.” SX62.

      In these circumstances there is no fair assurance that the error did not

influence the jury’s assessment of punishment. The recorded conversation

discredited Appellant’s characterization of his role in the offense – that he was

surprised by Enriquez’s actions and did not plan or willingly participate in the

robbery. As argued by the State, the recording portrayed Appellant as a calculating

and remorseless criminal. This was likely given significant weight by the jury, as it

bore directly on the circumstances of the offense and Appellant’s character.

      The punishment range was 15-99 years and the jury assessed a sentence of 20

years. CR114. While the sentence is at the low end of the range, the jury likely took

account of Appellant’s youth, which even the State argued was a mitigating factor

(5RR53). It is at least unclear whether the error influenced the verdict; accordingly,

the Court should find that the error affected Appellant’s substantial rights and

reverse the judgment on punishment. Barshaw, 342 S.W.3d at 94; Burnett, 88

S.W.3d at 637–38.

                                      PRAYER

      Appellant respectfully requests that the Court reverse his conviction and

remand the cause for a new trial, or alternatively, reverse the trial court’s judgment


                                          43
as to the punishment and remand the cause to the trial court for a new trial on

punishment only.



                                       Respectfully submitted,

                                       /s/ Adam B. Brown
                                       ADAM B. BROWN
                                       SBOT No. 01728540
                                       300 Main, Ste. 200
                                       Houston, Texas 77002
                                       (713) 223-0051
                                       (713) (FAX)
                                       adambrownlaw@yahoo.com

                                       ATTORNEY FOR APPELLANT




                                         44
                         CERTIFICATE OF SERVICE


       This document has been served on the following parties electronically
through the electronic filing manager contemporaneously and in conjunction with e-
filing on ______________________________.

Alan Curry
Assistant Harris County District Attorney
curry_alan@dao.hctx.net

                                       /s/ Adam B. Brown




                      CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that the relevant sections of this computer-
generated document have ________ words, based on the word count function of the
word processing program used to create the document. TEX. R. APP. P. 9.4 (i).


                                       /s/ Adam B. Brown




                                         45
