      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-02-00686-CR



                                    Karandal Benford, Appellant

                                                 v.

                                    The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
           NO. 9024186, HONORABLE BOB PERKINS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Our opinion and judgment issued on January 21, 2005, are withdrawn, and the

following opinion is substituted.

               Appellant Karandal Benford was indicted by a grand jury of theft of an aggregated

amount of more than $100,000 and less than $200,000, and for engaging in a criminal conspiracy

to commit theft between $100,000 and $200,000, a second-degree felony. See Tex. Pen. Code Ann.

§§ 15.02 (West 2003), 31.03 (West Supp. 2004-05), 31.09 (West 2003). The indictment alleged

eighteen incidents of theft of computers and related items from February 1999 through January 2001;

the State waived one of the allegations of theft after the evidence was presented and before the case

was submitted to the jury. The jury found appellant guilty of twelve of the remaining seventeen

allegations of theft of computer equipment amounting to between $100,000 and $200,000. The trial
court imposed punishment of forty-five years’ imprisonment, enhanced by a prior conviction. On

appeal, appellant contends contending that the trial court erred in admitting certain photographs and

hearsay statements by appellant’s alleged co-conspirators. We affirm the judgment of conviction.


                                        Factual Summary

               Between February 1999 and January 2001, there was a string of similar thefts from

businesses around Austin. The thief would break a window for access and steal computer

equipment, usually laptop computers. In December 2000, a security guard on his rounds at Tivoli

Systems encountered an intruder. The intruder fled, leaving behind a broken window, laptop

computers stacked by the window, and a backpack. In the backpack, the police found a receipt with

appellant’s name on it. The police questioned appellant and took a blood sample to compare to

blood found at another burglary, left when the thief apparently cut himself on broken glass during

the break-in. Appellant’s blood matched the blood found at the crime scene, with a probability of

the same profile appearing in the Caucasian population of 1 in 8.77 trillion, 1 in 7.46 trillion for

African-Americans, and 1 in 4.52 trillion for Hispanics; appellant is African-American. In

appellant’s truck, the police found glass fragments, a spiral notebook containing a list of companies

that had been robbed, and a spring-loaded “center punch,” a device used to crack glass panes.

               Detective Paul Brick testified that in November 2000 he obtained a search warrant

for a company called Startech after receiving information that Startech was selling counterfeit

computer software. During the search, the police seized a number of laptop computers from which

serial numbers had been removed, and found that several of the computers matched those stolen

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during the string of thefts. In February 2001, three months after the search warrant was executed,

Startech’s owners, brothers James and Nelson Wang, identified appellant from a photographic

lineup, stating that appellant was the person they knew as Adam Davis and from whom they bought

the stolen computers.

               David Yanes, who was under indictment for burglaries of SBC Technologies and

Cisco Systems, testified that he was friends with appellant, who went by “Adam,” and helped

appellant with the thefts in exchange for payments, usually about $500. Yanes testified that he and

appellant were almost caught at Tivoli in December 2000 and that in their haste to flee, they left a

backpack behind. Yanes was shown photographs from surveillance cameras at SBC and Cisco on

the nights they were robbed. Yanes testified that both sets of photos were of him and appellant

during thefts. Yanes also testified that appellant told him that someone at Startech told appellant

which companies would be monitored and which ones were safe.


                                     Photographic Evidence

               Appellant complains that the trial court erred in admitting five photographs from the

SBC surveillance camera into evidence, contending that the only authentication of the photos was

through hearsay testimony and thus violated his rights to confront and cross-examine witnesses.

               William Avery, an SBC employee, testified that when a security guard called him at

home to report a break-in, he went to the building, where he saw that his laptop was missing and a

window was broken. The security guard pulled a videotape from the surveillance cameras and Avery

viewed the tape and then gave it to SBC’s asset protection company. Avery believed the asset

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protection company gave the tape to the police. Avery identified the photographs as still frames

from the videotape and said they “fairly and accurately depict[ed] images that [he] saw on the

videotape” “just within a few hours of pulling that tape from the” recorder. Avery did not compare

the still photographs with the videotape and did not know who took the photographs. He saw one

or two before trial, but had not seen all of them earlier. Appellant objected, raising concerns about

authentication because Avery did not take the photos, was not involved in their taking, and did not

know what became of the tape after he turned it over. The court overruled appellant’s objections.

               As a general rule, we review a trial court’s decision on the admissibility of evidence

under an abuse of discretion standard and will not reverse such a decision unless it “falls outside the

zone of reasonable disagreement.” Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996).

A trial court’s decision as to whether evidence is properly authenticated or whether proper predicate

has been laid is reviewed under the same standard. See Angleton v. State, 971 S.W.2d 65, 67 (Tex.

Crim. App. 1998) (“standard of review for a trial court’s ruling under one of the rules of evidence

is abuse of discretion”); see also Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984)

(“sufficiency of a predicate is addressed to the discretion of the trial court and will not be reversed

absent an abuse of discretion” and lay witness may give “opinion regarding things within his

common knowledge”); Drone v. State, 906 S.W.2d 608, 611 (Tex. App.—Austin 1995, pet. ref’d)

(discussing authentication of photograph). Evidence may be authenticated by witness testimony that

“a matter is what it is claimed to be.” Tex. R. Evid. 901(b)(1). An original of a photograph includes

the negative and any prints made from the negative. Id. R. 1001(c). A duplicate is made from the



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same “impression” as an original, including enlargement, re-recording, or another technique that

accurately reproduces the original. Id. R. 1001(d). Originals are generally favored, but a duplicate

may be admitted for the same use as an original unless a question is raised as to the authenticity of

the original or if it would be unfair to admit a duplicate in lieu of the original. Id. R. 1002, 1003.

               Initially, we note that appellant did not object to Yanes’s testimony regarding the

same photographs. Further, appellant did not attack the authenticity of the original videotape and

raised no substantive concerns as to the authenticity of the photographs, arguing only that Avery was

not involved in the making or developing of the photos. Appellant did not assert that the photos had

been tampered with or reflected anything other than what the original videotape showed. Avery

testified that he viewed the surveillance videotape almost immediately after the burglary was

discovered and then turned the tape over to SBC’s asset protection company and that the photos were

fair and accurate representations of what he saw on the videotape. The trial court did not abuse its

discretion in finding that the photos were sufficiently authenticated as to be reliable evidence. See

Smith, 683 S.W.2d at 402-03 (witness testified that photographs actually depicted what they

purported to depict and therefore no abuse of discretion in admitting photos); Drone, 906 S.W.2d

at 611 (“A photograph may be authenticated by the testimony of any witness who has personal

knowledge that the particular item accurately represents the scene or event it purports to portray.”);

see also Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988) (predicate for videotape or

photograph need not be laid by photographer, subject of photograph, or person present when

photograph taken, and any witness who observed the subject depicted in photograph may lay

predicate). We overrule appellant’s first issue on appeal.

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                                        Hearsay Testimony

               Appellant next contends that the trial court erred in allowing Detective Brick to testify

about the Wang brothers’ statements in which they identified appellant from a photographic lineup

as Adam Davis, the man from whom they bought computers with missing serial numbers. Appellant

argues that those statements were hearsay and violated his rights to confront and cross-examine

witnesses. The State contends that Brick’s testimony about the Wangs’ statements was properly

admitted under the hearsay exception allowing for the admission of a statement contrary to the

declarant’s interest or tending to subject him to criminal liability. See Tex. R. Evid. 803(24).

               It appears and we assume that the Wangs’ statements should not have been admitted.1

However, the presumed error was harmless in light of the balance of the evidence. We will assume

that the Wangs’s statements were testimonial in nature and that their admission violated appellant’s

constitutional rights of confrontation,2 reversing unless we determine beyond a reasonable doubt that

the error did not contribute to the conviction. Tex. R. App. P. 44.2(a) (standard of review for

constitutional error). In making this determination, we “calculate, as nearly as possible, the probable

impact of the error on the jury in light of the other evidence.” McCarthy v. State, 65 S.W.3d 47, 55



       1
          The Supreme Court recently held that the Sixth Amendment of the United States
Constitution bars the use of out-of-court testimonial evidence against a defendant unless the State
establishes that the witness is unavailable and that the defendant had an opportunity to cross-examine
the witness. Crawford v. Washington, 541 U.S. 36, 51-53 (2004). The State did not show that the
Wangs were unavailable to testify or that appellant was able to cross-examine them.
       2
          See Woods v. State, No. AP-74,430, 2004 Tex. Crim. App. LEXIS 2146, at *17-18 (Dec.
15, 2004) (noting that Crawford did not define “testimonial” evidence). Although the Wangs did
not make their statements during a “preliminary hearing, before a grand jury, or at a former trial,”
Crawford, 541 U.S. at 53, the record reflects that the Wangs made their statements to Brick during
a police investigation. See Crawford, 541 U.S. at 53; Lee v. State, 143 S.W.3d 565, 570 (Tex.
App.—Dallas 2004, no pet. h.).

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(Tex. Crim. App. 2001). If there is a reasonable likelihood that the error materially affected the

jury’s deliberations, then the error was not harmless beyond a reasonable doubt. Wesbrook v. State,

29 S.W.3d 103, 119 (Tex. Crim. App. 2000).

               In this case, there was significant evidence of appellant’s guilt without taking the

Wangs’ statements into account: appellant and Yanes were caught on videotape at two different

businesses as they stole computers; Yanes gave substantial testimony about the thefts with which

he assisted; appellant’s blood matched blood found at the scene of one theft; a receipt with

appellant’s name was found after an aborted theft; and the police found in appellant’s truck a device

for breaking windows, glass fragments, and a journal containing a handwritten list of several

businesses from which computers had been stolen. Having considered the entire record, we conclude

that there is no reasonable likelihood that the error materially affected the jury’s deliberations and

hold that the error was harmless. Id. We therefore overrule appellant’s second issue on appeal.


                                            Conclusion

               Having overruled appellant’s issues on appeal, we affirm the trial court’s judgment.




                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: February 3, 2005

Do Not Publish


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