Opinion issued October 4, 2018




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                         ————————————
                          NO. 01-17-00540-CR
                          NO. 01-17-00541-CR
                         ———————————
                       SEMERE BERHE, Appellant
                                   V.
                    THE STATE OF TEXAS, Appellee


                 On Appeal from the 299th District Court
                          Travis County, Texas
       Trial Court Case Nos. D-1-DC-15-302752 & D-1-DC-15-302753


                       MEMORANDUM OPINION
      In trial court cause number D-1-DC-15-302752,1 the jury found appellant

guilty of aggravated kidnapping.2 In trial court cause number D-1-DC-15-302753,3

the jury found appellant not guilty of aggravated robbery, but found him guilty of

robbery.4 Appellant elected punishment by the trial court. After it affirmatively

found that appellant released the victim in a safe place on the aggravated kidnapping

offense and that appellant pleaded true to an enhancement paragraph, the trial court

assessed appellant’s punishment at 25 years in prison in each case, to run

concurrently.5

      In his sole point of error in both appellate cause numbers, appellant argues

that the trial court abused its discretion by admitting appellant’s cell phone without

proper authentication. During the pendency of this appeal, the State filed a motion

for judgment nunc pro tunc, requesting that we correct an error in the judgment. We



1
      Appellate cause number 01-17-00540-CR.
2
      TEX. PENAL CODE ANN. § 20.04 (West 2011).
3
      Appellate cause number 01-17-00541-CR.
4
      TEX. PENAL CODE ANN. § 29.02 (West 2011).
5
      The Texas Supreme Court transferred this appeal from the Court of Appeals for the
      Third District of Texas to this Court pursuant to its docket equalization powers. See
      TEX. GOV’T CODE ANN. § 73.001 (West 2013) (“The supreme court may order cases
      transferred from one court of appeals to another at any time that, in the opinion of
      the supreme court, there is good cause for the transfer.”). We are unaware of any
      conflict between the precedent of the Court of Appeals for the Third District and
      that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
                                            2
will modify the trial court’s judgment of conviction and affirm the judgment as

modified.



                                    Background

      On December 29, 2015, at approximately 11:20 p.m., R. Cook returned home

after work. As Cook walked from the parking lot to his apartment, two men

confronted him. Cook testified that one man approached him, held a gun to his

stomach, and demanded his wallet and phone. Unsatisfied that Cook had only $2.00

in his wallet, the two men forced Cook to drive his car to several locations in search

of an ATM. After Cook withdrew $500 from a drive-through ATM and gave the

money to the men, they then forced Cook to drive to the parking lot of a grocery

store and informed Cook that they were going to let him go. Before releasing Cook,

one of the men used a cell phone to take photos of Cook’s driver’s license and license

plate. Cook testified that one man told him that if he reported them to the police, he

would “send his people” after him. After the men left, Cook reported the events to

the police.

      Police officers with the Austin Police Department (“APD”), identified

appellant as a suspect and obtained a warrant for his arrest. Members of the Lone

Star Fugitive Task Force (the “Task Force”), an organization comprised of APD and

other local and federal law enforcement, arrested appellant at a hotel on December


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31, 2015. In the course of the arrest, the Task Force obtained appellant’s wallet,

sunglasses, and cell phone. The Task Force then transported appellant and his

property to police headquarters.

      At headquarters, APD Detective J. Pelt interviewed appellant. Pelt confirmed

that appellant had a wallet, sunglasses, and cell phone on him when the Task Force

arrested him. During the interview, appellant confirmed his phone number with Pelt

and appellant was given an opportunity to access his cell phone. After the interview,

Pelt gave appellant’s property, including the cell phone, to APD Detective N. Sexton

to submit as evidence.

      At trial, appellant’s counsel objected to the admission of appellant’s cell

phone. Specifically, counsel asserted that the State had not adequately established

the beginning of the chain of custody. The State responded that Pelt’s prior

testimony was sufficient to authenticate the phone. Any gaps in the chain of custody,

the State argued, would go to the weight, and not the admissibility, of the evidence.

      The trial court overruled appellant’s objection and admitted the cell phone.

Upon the conclusion of the trial, the jury found appellant guilty of aggravated

kidnapping and robbery. Appellant timely appealed.

                            Authentication of Evidence

      In his sole point of error, appellant argues that the trial court erred when it

admitted appellant’s cell phone without the first link in the chain of custody.


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      Standard of Review and Applicable Law

      We review a decision to admit evidence on an abuse of discretion standard.

Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) (op. on reh’g); Porter

v. State, 969 S.W.2d 60, 64 (Tex. App.—Austin 1998, pet. ref’d); McGregor v. State,

394 S.W.3d 90, 117 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). We will

affirm the trial court’s decision if it was “at least within the zone of reasonable

disagreement.” Tienda, 358 S.W.3d at 638 (quoting Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1990)).

      A trial court has great discretion to admit or deny evidence. Druery v. State,

225 S.W.3d 491, 503 (Tex. Crim. App. 2007). A trial court should admit evidence

only if the evidence is properly authenticated. See id. at 502. The authentication

requirement is satisfied “by evidence sufficient to support a finding that the matter

in question is what the proponent claims.” Id. (quoting TEX. R. EVID. 901(a)). Many

different forms of evidence may satisfy the authentication requirement. See Tienda,

358 S.W.3d at 638; TEX. R. EVID. 901(b). For example, the requirement may be

satisfied by the testimony of a witness with knowledge of the piece of evidence.

Gardner v. State, 306 S.W.3d 274, 293 (Tex. Crim. App. 2009) (citing TEX. R. EVID.

901(b)(1)); Stanley v. State, 606 S.W.2d 918, 919 (Tex. Crim. App. 1980) (stating


                                         5
that complainant’s testimony that shotgun offered by State looked like gun used

during robbery justified its admission in evidence); Outland v. State, 810 S.W.2d

474, 475 (Tex. App.—Fort Worth 1991, pet. ref’d) (stating that because officer

identified gun as that retrieved from getaway vehicle, chain of custody need not be

shown).

      If the party seeking admission cannot identify the evidence “through

distinctive markings . . . or if the evidence is fungible, as are drugs or tests results,”

proof of chain of custody is required. Davis v. State, 992 S.W.2d 8, 10–11 (Tex.

App.—Houston [1st Dist.] 1996, no pet.) (citing Hammett v. State, 578 S.W.2d 699,

708 (Tex. Crim. App. 1979)). The chain-of-custody requirement generally applies

to indistinguishable objects. See Frasier v. State, No. 03-09-00354-CR, 2010 WL

3058256, at *2 (Tex. App.—Austin Aug. 5, 2010, no pet.) (mem. op.) (bag of

methamphetamine); Clemens v. State, No. 03-05-00156-CR, 2008 WL 2065986, at

*5–6 (Tex. App.—Austin May 15, 2008, no pet.) (mem. op.) (samples of gasoline);

Foley v. State, No. 01-11-00113-CR, 2012 WL 1564685, at *4 (Tex. App.—Houston

[1st Dist.] May 3, 2012, pet. ref’d) (mem. op.) (sample of heroin). Ultimately, the

trial court must decide whether there is evidence to support a “reasonable jury

determination that the [proffered] evidence is authentic.” Tienda, 358 S.W.3d at

638; Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.);




                                            6
Jones v. State, 466 S.W.3d 252, 262 (Tex. App.—Houston [1st Dist.] 2015, pet.

ref’d).



          Analysis

          Appellant argues that the chain of custody was inadequate because the State

failed to prove the beginning of the chain of custody. Specifically, appellant argues

that Detective Pelt testified at trial that the chain of custody began with Detective

Sexton and because Sexton did not testify at trial, the State did not prove the

beginning of the chain of custody. Appellant concludes that the State did not

properly authenticate the evidence, and the trial court erred when it admitted the cell

phone. The State responds that Detective Pelt adequately linked the cell phone to

appellant for authentication purposes and that chain of custody was not required to

authenticate the cell phone.

          The State need only prove chain of custody if it does not otherwise

authenticate the evidence, such as by providing a witness who testifies to the

evidence’s authenticity. See Davis, 992 S.W.3d at 10–11. At the time of the phone’s

admission, the State had presented sufficient evidence to support a “reasonable jury

determination” that the phone was authentic. Tienda, 358 S.W.3d at 638.

          At trial, Pelt testified that the Task Force recovered appellant’s phone and

delivered it to him at headquarters. Pelt testified that, during the interview, appellant


                                            7
confirmed his phone number and used the phone to access several phone numbers.

Additionally, Pelt confirmed that, after the interview, he gave the phone to Sexton

and that Sexton deposited the phone in evidence storage. Finally, Pelt testified that

the phone in the courtroom was the same phone that was delivered to him by the

Task Force. Having handled the phone during the interview and having witnessed

appellant use the phone, Pelt had knowledge that the phone was what the State

purported it to be.6 Because the State elicited testimony that was sufficient for the

trial court to have determined that the phone was what the State purported it to be,

the trial court did not abuse its discretion in admitting the phone. TEX. R. EVID.

901(a).

      We overrule appellant’s sole point of error.

                          Motion for Judgment Nunc Pro Tunc

      On May 31, 2018, the State filed a motion for judgment nunc pro tunc, noting

that the judgment in cause number D-1-DC-15-302752, appellate cause number 01-

17-00540-CR, erroneously states that appellant was convicted of a first degree

felony. The State points out that, because appellant was convicted of aggravated

kidnapping and that the trial court found during punishment that appellant released


6
      Subsequently, Pelt obtained a search warrant for appellant’s cell phone. After
      obtaining the warrant, Pelt requested that APD’s digital forensics unit process the
      phone. Detective W. Pursley of the APD digital forensic unit found pictures of
      Cook’s driver’s license and license plates on appellant’s phone, thus corroborating
      Cook’s testimony.
                                           8
the victim in a safe place, the judgment should reflect that appellant was convicted

of a second-degree felony. See TEX. PENAL CODE ANN. § 20.04(d) (West 2011).

Appellant has not responded to the State’s motion.

      While it is the trial court that has the authority to enter a nunc pro tunc

judgment pursuant to Rule 23.1 of the Texas Rules of Appellate Procedure, we have

the authority to correct a trial court’s judgment when we have the necessary

information to do so. See TEX. R. APP. P. 23.1, 43.2(b); Bigley v. State, 865 S.W.2d

26, 27–28 (Tex. Crim. App. 1993); Figueroa v. State, 250 S.W.3d 490, 518 (Tex.

App.—Austin 2008, pet. ref’d). After reviewing the record and judgment, we agree

with the State that the trial court determined that appellant released the victim in a

safe place, and therefore the judgment should reflect that appellant was convicted of

a second degree felony. See TEX. PENAL CODE ANN. § 20.04(d).

      Accordingly, in trial court cause number D-1-DC-15-302752, we modify the

judgment to reflect that appellant was convicted of a second degree felony.




                                          9
                                      Conclusion

      We modify the trial court’s judgment in trial court cause number D-1-DC-15-

302752 and affirm as modified. We affirm the trial court’s judgment in trial court

cause number D-1-DC-15-302753.




                                                   Sherry Radack
                                                   Chief Justice


Panel consists of Chief Justice Radack and Justices Brown and Caughey.

Do not publish. See TEX. R. APP. P. 47.2(b).




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