                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00282-CR

WAYLON CHAZ STANDMIRE,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 40th District Court
                               Ellis County, Texas
                             Trial Court No. 37387CR


                                    OPINION


      Waylon Chaz Standmire was convicted of aggravated assault with a deadly

weapon. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). Standmire approached a

fellow inmate in the Ellis County Jail who was sleeping and sliced the inmate’s face

with an object. Standmire was sentenced to 15 years in prison. Because the trial court

erred in assessing attorney's fees, the assessment of attorney's fees is deleted from the

judgment; and trial court's judgment is affirmed as modified.
SUFFICIENT EVIDENCE OF A DEADLY WEAPON

        We first discuss Standmire’s second issue, the sufficiency of the evidence. In it,

he contends the evidence is insufficient to prove that he used “a razor, shank, or

another sharp bladed instrument” as alleged in the indictment and that any such object

was a deadly weapon.

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. 1 Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting


1 While the consideration of improperly admitted evidence may seem odd, the sufficiency of the evidence
is a different issue than its admission. The propriety of the admission of evidence is considered
separately and the result of its erroneous admission results in its own harm analysis. See Johnson v. State,
967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

Standmire v. State                                                                                   Page 2
inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Deadly Weapon

        A person commits the offense of aggravated assault if he uses or exhibits a

deadly weapon during the commission of an assault.           TEX. PENAL CODE ANN. §

22.02(a)(2) (West 2011). What constitutes a "deadly weapon" is determined by section

1.07 of the Texas Penal Code. Robertson v. State, 163 S.W.3d 730, 732 (Tex. Crim. App.

2005). In the context of this appeal, a deadly weapon includes anything that in the

manner of its use or intended use is capable of causing death or serious bodily injury.

TEX. PENAL CODE ANN § 1.07(a)(17)(B) (West 2011) (emphasis added). "Serious bodily

injury" means bodily injury that creates a substantial risk of death or that causes death,

serious permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ. Id. § 1.07(a)(46). The plain language of the statute does


Standmire v. State                                                                  Page 3
not require the actor to actually intend death or serious bodily injury; an object is a

deadly weapon if the actor intends a use of the object in which it would be capable of

causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim.

App. 2000). Expert or lay testimony may be sufficient to support a deadly-weapon

finding, and police officers can be expert witnesses with respect to whether a deadly

weapon was used. Tucker v. State, 274 S.W.3d 688, 692 (Tex. Crim. App. 2008).

Evidence

        Detention Officer Benjamin Parten testified that Standmire approached Parten’s

observation window of the “P tank,” which Parten was assigned to observe, and stuck a

note on it. After reading the note, Parten noticed something was wrong in the tank,

entered the tank, and approached jail inmate Aaron Fedrick who was holding his face.

Fedrick was upset, pointed to Standmire, and said that Standmire had just cut him with

a razor blade. Razors are regularly provided to the jail inmates between 4 and 6 a.m. so

that they may shave if they wish. Standmire admitted to Detention Officer Rusty

Hinkle that he had assaulted Fedrick.

        Standmire was removed from the tank and strip searched. The only weapon

found on him was a sock with a bar of soap in it which could be used to assault

someone.2     “P tank” was also searched but no razor or other weapon was found.

However, Hinkle testified there was no way a toilet could be searched if something had

2Standmire was seen in the video putting the bar of soap in the sock and twirling it around after he had
assaulted Fedrick as if in anticipation of retaliation.

Standmire v. State                                                                               Page 4
been flushed down it. Further, Standmire could be seen in the video heading for the

bathroom area after he sliced Fedrick and before he returned to the bunk area and put

the bar of soap in the sock.

        A licensed vocational nurse, Lisa Nelson, was called to the tank to tend to

Fedrick. She tried to control the bleeding from Fedrick’s face, but could not. She asked

the detention officers to take Fedrick to the medical room where Nelson briefly

controlled the bleeding enough to look at Fedrick’s wounds. Nelson saw that Fedrick

had a small laceration at his eyebrow and a very large and deep laceration from the

corner of his mouth and down his chin. When the laceration was pulled open, Nelson

could see through it to the inside of Fedrick’s mouth, revealing teeth and gums. Fedrick

was then sent to the hospital. Nelson said the laceration appeared to be made by a

sharp-bladed instrument and agreed that the wound could not be made with anything

other than something that was fairly sharp.

        Parten and Nelson each testified that anything that could make that kind of

wound would be capable of causing serious bodily injury or death. Prior to drawing

that conclusion, Parten noted that the weapon cut Fedrick’s eye brow, just missed

Fedrick’s eye, cut his nose, and cut deeply into Fedrick’s chin and through his mouth.

Nelson based her conclusion on the depth of the laceration to Fedrick’s chin. The jury

was shown photos of various angles of Fedrick’s face after being stitched up at the

hospital. The photos show several large stitches through Fedrick’s right eyebrow, a thin


Standmire v. State                                                                Page 5
cut, not stitched, alongside his nose, and a long line of stitches starting at the right

portion of his upper lip, angling toward the right corner of his mouth and down to his

chin. The jury also saw video recorded by Parten’s lapel camera of the large amount of

blood lost by Fedrick as a result of the assault.

           After reviewing the record, we conclude a rational jury could have found,

beyond a reasonable doubt, that Standmire used a razor, shank, or another sharp

bladed instrument as alleged in the indictment and that the object used was a deadly

weapon. Standmire’s second issue is overruled.

CHARGE ERROR

           In his third issue, Standmire contends the trial court erroneously omitted the

definition of deadly weapon in the application paragraph,3 lessening the State’s burden

of proof and creating a presumption in the minds of the jurors that a “razor, shank, or

another sharp bladed instrument” was a deadly weapon. Standmire argues that a

correct application paragraph would have included the appropriate statutory definition

of deadly weapon, in this case that in the manner of its use or intended use is capable of

causing death or serious bodily injury, or at least made a reference to the definition

given in the abstract portion of the charge.

           A trial court is required to fully instruct the jury on the law applicable to the case

and to apply that law to the facts presented.                Gray v. State, 152 S.W.3d 125, 127 (Tex.


3   The definition was contained in the abstract portion of the court’s charge.

Standmire v. State                                                                             Page 6
Crim. App. 2004). The meaning of a jury instruction must be taken from the whole

charge, and jurors are not authorized to return a verdict except under those conditions

given by the application paragraph of the charge. Delapaz v. State, 228 S.W.3d 183, 212

(Tex. App.—Dallas 2007, pet. ref'd). Although a jury charge is adequate if it either

contains an application paragraph specifying all of the conditions to be met before a

conviction under such theory is authorized, or contains an application paragraph

authorizing a conviction under conditions specified by other paragraphs of the jury

charge to which the application paragraph necessarily and unambiguously refers, or

contains some logically consistent combination of such paragraphs, Plata v. State, 926

S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953

S.W.2d 234 (Tex. Crim. App. 1997)), it is not enough for the charge to merely

incorporate the allegation in the charging instrument. Gray v. State, 152 S.W.3d 125, 127

(Tex. Crim. App. 2004). Instead, it must also apply the law to the facts adduced at trial.

This is because the jury must be instructed under what circumstances they should

convict, or under what circumstances they should acquit. Id. at 127-128. Jury charges

which fail to apply the law to the facts adduced at trial are erroneous. Id. at 128.

        Here, the trial court gave the appropriate definition of deadly weapon in the

abstract portion of the charge as it related to the types of weapons alleged in the

indictment. However, the trial court merely repeated the allegation in the charging

instrument in the application paragraph but did not define or make specific reference to


Standmire v. State                                                                     Page 7
the definition of “deadly weapon” which was contained in the abstract paragraph. 4 By

doing so, the trial court effectively instructed the jury that a “razor, shank, or another

sharp bladed instrument” was a deadly weapon and thus lessened the State’s burden to

prove that whatever object was used by Standmire was a deadly weapon.5 Thus, the

trial court erred.

          Standmire, however, did not object to the charge. Unobjected-to jury charge

error will not result in reversal of a conviction in the absence of "egregious harm."

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). In examining the record

for egregious harm, we consider the entire jury charge, the state of the evidence, the

arguments of the parties, and any other relevant information revealed by the record of

the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury

charge error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218




4   The application paragraph provides, in full:

          “Now, if you find from the evidence beyond a reasonable doubt that on or about October
          24, 2012, in Ellis County, Texas, the defendant, WAYLON CHAZ STANDMIRE, did then
          and there intentionally or knowingly or recklessly cause bodily injury to Aaron Keith
          Fedrick, by cutting him with a razor, a shank, or another sharp bladed instrument, and
          the defendant did then and there use or exhibit a deadly weapon, to-wit: a razor, a
          shank, or another sharp bladed instrument, as alleged in the Indictment, then you will
          find the defendant guilty of Aggravated Assault with a Deadly Weapon as charged in the
          Indictment.”

5 We note that both the First Court of Appeals and the Fourteenth Court of Appeals have held that an
application paragraph such as this one is not erroneous. See Williamson v. State, 356 S.W.3d 1, 28 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d); Francis v. State, 746 S.W.2d 276, 278 (Tex. App.—Houston
[14th Dist.] 1988, pet. ref'd). We disagree with those courts’ determinations.

Standmire v. State                                                                                 Page 8
S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.

App. 2006).

        As we previously stated, the abstract portion of the charge properly defined a

deadly weapon as it related to the case. On the very next page was the application

paragraph. Also, it was clear from the evidence that Standmire used a sharpened object

to slice Fedrick and that, because of the extent of the resulting injury, the manner of its

use or intended use was capable of causing death or serious bodily injury. Further,

both parties argued to the jury that the State had the burden to prove a deadly weapon.

Both parties also argued whether the State met its burden of proof by proving beyond a

reasonable doubt that the unlocated object used in the assault was a deadly weapon.

        Based on an evaluation of the record, we determine Standmire was not

egregiously harmed by the trial court’s error. Standmire’s third issue is overruled.

OBJECTION TO VIDEO EVIDENCE

        Standmire’s first issue is that the trial court erred in admitting the video

recording from the jail surveillance camera because the sponsoring witness for the

exhibit did not have sufficient knowledge to authenticate the exhibit. Specifically,

Standmire argues that because the detention officer sponsoring the exhibit did not see

the assault take place and because he could not show the recording process accurately

produced the resulting video, no one with personal knowledge could testify that the




Standmire v. State                                                                     Page 9
images on the exhibit were an accurate portrayal of what occurred. See TEX. R. EVID.

901.

        An appellate court may not disturb a trial court's evidentiary rulings absent an

abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). As

long as the trial court's decision was within the zone of reasonable disagreement and

was correct under any theory of law applicable to the case, it must be upheld. Id. (citing

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc) (op. on

reh'g)). Texas Rule of Evidence 901 provides that "[t]he requirement of authentication

or identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent claims."

TEX. R. APP. P. 901(a). Rule 901(b) provides illustrations of authentication complying

with the rule; for instance, testimony by a witness with knowledge that the matter is

what it is claimed to be is an acceptable method of authentication. Id. (b)(1); Wood v.

State, 18 S.W.3d 642, 647 (Tex. Crim. App. 2000). See also Tienda v. State, 358 S.W.3d 633,

638 (Tex. Crim. App. 2012). The rule requires only a showing satisfying the trial court

that the matter in question is what its proponent claims. Llamas v. State, 270 S.W.3d 274,

281 (Tex.App.—Amarillo 2008, no pet.).

Preservation

        We first address the State’s argument that the objection made at trial does not

comport with the issue raised on appeal. To preserve a complaint for appellate review,


Standmire v. State                                                                  Page 10
the record must show that the complaint was made to the trial court by a timely

request, objection or motion that states the grounds for the ruling sought with sufficient

specificity to make the trial court aware of the complaint unless the grounds were

apparent from the context. TEX. R. APP. P. 33.1(a). A complaint will not be preserved if

the legal basis of the complaint raised on appeal varies from the complaint made at trial.

See TEX. R. APP. P. 33.1; Lovill v. State, 319 S.W.3d 687, 691-692 (Tex. Crim. App. 2009).

        When the exhibit was first offered into evidence, Detention Officer Benjamin

Parten, the officer who noticed something wrong in the “P tank” and who entered to

find an inmate, Aaron Fedrick, holding his bleeding face, testified that he watched the

video of the two camera views of the tank and that it was a fair and accurate

representation of the events that occurred that day. Standmire first objected by pointing

out that the “proper foundation and proper questions haven’t been asked or answered

for admission” of the exhibit. The objection was sustained.

        The State then asked Parten if the exhibit was made on a device that accurately

records events that the camera “sees,” whether the operator was competent, and

whether the video had been tampered with in any way. Parten responded affirmatively

to the first two questions by the State and negatively to the third question.

        Standmire again objected and questioned Parten on voir dire where Parten

acknowledged that he did not personally operate the equipment that made the video,

did not have access to the equipment, and did not take part in the transferring of the


Standmire v. State                                                                    Page 11
images to the DVD. Standmire then objected, stating “this particular witness does not

have the experience…or practical involvement with the creation of this document, and,

therefore, he’s not qualified to sponsor it.” The State responded that the video was

essentially a sequence of photographs and that Parten had testified the video was a fair

and accurate representation of the events depicted. After Parten confirmed for the trial

court that he watched the video, the trial court overruled Standmire’s objection and

admitted the video into evidence.

        After reviewing the record, while it is a close call, we believe the trial court

understood the basis of the objection, that being the video exhibit was not properly

authenticated by the sponsoring witness, which is the same issue on appeal. Thus, we

find the objection made at trial comports with the issue raised on appeal and overrule

the State’s preservation and presentation argument.

Authentication

        There are at least two ways, if not more, to authenticate photographic evidence

including videos. The most common is by testimony that the photo or video is an

accurate representation of the object or scene in question. See Huffman v. State, 746

S.W.2d 212, 222 (Tex. Crim. App. 1988). In this situation, the sponsoring witness is not

required to be the person who operated the camera or video equipment. Id. Another

slightly less common but equally permissible way is by testimony that the process or

system that produced the photo or video is reliable. See Reavis v. State, 84 S.W.3d 716,


Standmire v. State                                                               Page 12
720 (Tex. App.—Fort Worth 2002, no pet.). Reliability of the system or process is most

often used when there is no witness that was present at the scene or event depicted in

the photograph or video. This is common with security videos; such as those used after

hours in convenience stores and freestanding automatic teller machines.                              For

authentication of such photographic or video evidence, the sponsoring 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.6 See id.; see also Randell v. State, No. 07-11-

00493-CR, 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 Tex. App. LEXIS 1544, * 3 (Tex. App.—El Paso

Feb. 29, 2012, no pet.) (not designated for publication). But if the sponsoring witness

was present when the photographs or video were taken or has personal knowledge of

what the photographs or video depict, it is unnecessary for the sponsoring witness to

also testify regarding the reliability of the system. See TEX. R. EVID. 901.

        In this instance, Parten was present and is, in fact, shown in the video. He

certainly was able to testify whether the video was an accurate portrayal of the events

depicted. While he may not have seen the event depicted at the beginning of the video



6Any notion that this type of evidence is always required for authentication of video or audio recordings
has clearly been rejected by the Court of Criminal Appeals. See Angleton v. State, 971 S.W.2d 65, 68 (Tex.
Crim. App. 1998).

Standmire v. State                                                                                Page 13
of Standmire’s contact with Fedrick while Fedrick was lying on his bunk, Parten did

personally witness the events depicted only seconds later and then appeared on the

video himself.

        Parten’s testimony was certainly sufficient to authenticate the video. Because the

admission of the exhibit was based on Parten’s personal knowledge of the facts

depicted in the video, it was unnecessary for the State to authenticate the video by any

other means or methods such as proving the reliability of the system or process.

Accordingly, the trial court did not abuse its discretion in admitting the video over

Standmire’s objection; and Standmire’s first issue is overruled.

ATTORNEY’S FEES

        In his fourth issue, Standmire contends that the evidence is insufficient to permit

the trial court to assess court appointed attorney’s fees. The State concedes that the

evidence is insufficient in this regard. In accordance with the opinion of the Court of

Criminal Appeals in Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010), we

agree that the evidence was insufficient and the judgment should be modified to delete

this assessment. Standmire's fourth issue is sustained.

CONCLUSION

        The evidence was insufficient for the trial court to have assessed attorney's fees

in the judgment, therefore, that assessment is deleted and the judgment is modified to

show that the amount of costs owed by Standmire is $274.00 for court costs and no


Standmire v. State                                                                  Page 14
attorney's fees. Having found no other reversible error, we affirm the trial court's

judgment as modified.




                                       TOM GRAY
                                       Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed August 7, 2014
Publish
[CR25]




Standmire v. State                                                           Page 15
