AFFIRM; and Opinion Filed August 11, 2014.




                                          S   In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                       No. 05-13-01401-CR

                              FRED ERNEST PERATTA, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                          On Appeal from the County Court at Law No. 2
                                     Grayson County, Texas
                               Trial Court Cause No. 2012-2-0636

                               MEMORANDUM OPINION
                             Before Justices Fillmore, Evans, and Lewis
                                     Opinion by Justice Lewis
       A jury found appellant Fred Ernest Peratta guilty of driving while intoxicated and

assessed his punishment at 180 days in jail and a $500 fine. The jury also recommended

appellant be placed on community supervision. The trial court’s judgment suspended appellant’s

180-day sentence and placed him on community supervision for eighteen months. In a single

issue, appellant contends the trial court erred by admitting into evidence—over appellant’s

objection—the videotaped recording of his traffic stop. We issue this memorandum opinion

because the law to be applied in the case is well settled. TEX. R. APP. P. 47.4. We affirm the

trial court’s judgment.

       Appellant was driving in Grayson County on the evening of February 24, 2012, when he

was stopped by Department of Public Safety Trooper James Walters. Walters testified he had

watched appellant drive out of a bar’s parking lot and decided to follow him. Walters initiated
the traffic stop when he observed appellant make a left turn at an intersection without using his

turn signal.    Walters approached appellant’s vehicle, and when appellant rolled down his

window, Walters could smell “the odor of an alcoholic beverage” and see that appellant’s eyes

were bloodshot and glassy. Walters decided to perform field sobriety tests on appellant. Walters

testified to the nature of these tests, how he performed them on appellant, and the results that

evidenced appellant’s intoxication. Appellant denied he had been drinking, and Walters asked if

he would agree to take a breath test; appellant declined the breath test and also refused to give a

blood sample.      Walters testified he decided to arrest appellant “[b]asically [because of]

everything that I had seen. I knew that he had just left a bar. The odor of an alcohol[ic] beverage

coming from him, his bloodshot eyes, his performance of the field sobriety tests, and then him

refusing to take the portable breath test.”

          When appellant refused both breath and blood tests, Walters prepared an affidavit to

support a search warrant so a blood sample could be taken despite appellant’s refusal. To help

him describe the sobriety tests accurately in the affidavit, Walters took the video recording of the

stop out of his patrol car and watched a portion of it in the police station. When the affidavit was

complete, he returned to his car and replaced the video. He testified that his usual practice would

be to fast-forward to the end of the recording of the stop and then to begin any new recording at

that point.    However, Walters testified that on this occasion he forgot to fast-forward the

recording. As a result, when Walters started the recorder again, he inadvertently taped over a

portion of appellant’s stop, and the recording did not show all of the sobriety testing or the actual

arrest.

          When the State offered the recording, appellant’s counsel elicited Walters’s testimony

that what remained of the stop on the video was accurate, but that the video had been “altered” to

the extent a portion of the stop was taped over. Counsel objected that a proper predicate had not

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been laid for the exhibit because it had been altered and was not a fair and accurate depiction of

what occurred during the stop that night. The State responded that the video was accurate as to

what was depicted, and thus the predicate was proper. The trial court overruled appellant’s

objection.

       We review the trial court’s decision to admit evidence for an abuse of discretion.

McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).               There is no abuse of

discretion in admitting evidence if the trial judge reasonably believes that a reasonable juror

could find the evidence has been authenticated. Druery v. State, 225 S.W.3d 491, 502 (Tex.

Crim. App. 2007).

       Appellant complains specifically that the trial court failed to apply the test for admission

of sound recordings that is set forth in Edwards v. State, 551 S.W.2d 731 (Tex. Crim. App.

1977), when it admitted the video in this case. In Edwards, the court of criminal appeals adopted

these seven factors as the proper foundation for authenticating a sound recording:

       (1) a showing that the recording device was capable of taking testimony, (2) a
       showing that the operator of the device was competent, (3) establishment of the
       authenticity and correctness of the recording, (4) a showing that changes,
       additions, or deletions have not been made, (5) a showing of the manner of the
       preservation of the recording, (6) identification of the speakers, and (7) a showing
       that the testimony elicited was voluntarily made without any kind of inducement.

Id. at 733. However, the Edwards test has been superseded by the rules of evidence. Rule 901

of those rules now governs authentication of evidence, and it asserts:

       The 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. EVID. 901(a). Indeed, the court of criminal appeals has held that “attempts to cling to the

Edwards test after the enactment of Rule 901 will result in unwarranted confusion for

practitioners, trial courts, and appellate courts.” Angleton v. State, 971 S.W.2d 65, 69 (Tex.



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Crim. App. 1998). In contrast, rule 901 is “straightforward, containing clear language and

understandable illustrations.” Id.

       We apply rule 901 in appellant’s case and ask whether the evidence establishes the

recording is what the State claims it is, i.e., an accurate representation of a portion of Walters’s

interaction with appellant on the night of appellant’s arrest. Rule 901 provides a nonexclusive

list of methods for authenticating evidence; the list includes the testimony of a witness with

knowledge. TEX. R. EVID. 901(b)(1). Walters, a witness with knowledge, acknowledged the

recording did not show the entirety of the sobriety testing or the arrest, but he testified that “the

parts that are on the video” are fairly and accurately depicted. This testimony was sufficient to

authenticate the recording.

       We conclude the trial judge could have reasonably believed that a reasonable juror could

find the video was what it purported to be. See Druery, 225 S.W.3d at 502. Therefore, we

discern no abuse of discretion, and we overrule appellant’s single issue. We affirm the trial

court’s judgment.




                                                      /David Lewis/
                                                      DAVID LEWIS
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47

131401F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

FRED ERNEST PERATTA, Appellant                     On Appeal from the County Court at Law
                                                   No. 2, Grayson County, Texas
No. 05-13-01401-CR        V.                       Trial Court Cause No. 2012-2-0636.
                                                   Opinion delivered by Justice Lewis,
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 11th day of August, 2014.




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