Roberson, Jr., Jefrie v. State

Opinion issued May 18, 2006 In The Court of Appeals For The First District of Texas NO. 01-05-00513-CR JEFRIE ROBERSON JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 21st District Court Burleson County, Texas Trial Court Cause No. 12896 MEMORANDUM OPINIONAppellant, Jefrie Roberson Jr., was indicted for two counts of delivery of a controlled substance, cocaine, in an amount of one gram or more but less than four grams. A jury convicted appellant on both counts and assessed 15 years’ imprisonment and a $10,000 fine for the first count and 5 years’ imprisonment and a $10,000 fine for the second count. In four points of error, appellant contends that the trial court erred (1) in admitting an audio cassette recording of the drug transaction in count two because it was not properly authenticated; (2) in admitting evidence of a prior unadjudicated offense; (3) in admitting evidence of prior bad acts contained on an audio recording and via the testimony of an undercover police officer; and (4) in failing to include an instruction on the defense of entrapment in the jury charge. For the reasons that follow, we affirm. BACKGROUND A confidential informant (CI) and his wife, as part of an undercover drug buy operation, met appellant at a hotel. The drug buy, set up by the Independent Narcotics Task Force in Burleson County, took place in two adjoining hotel rooms connected by a door. The room where the drug delivery was to take place contained a hidden camera connected to a DVD player with audio and video recording capabilities in the other room. The officers also hid a micro-cassette recorder in the drug delivery room. Before entering the hotel room, the CI and his wife were searched to make sure neither had any money or contraband; they were then provided with cash by the officers to purchase the drugs. Appellant arrived, sold the CI and his wife crack cocaine and left. The drugs were then confiscated by the police. Six days later, the CI again met appellant to purchase crack cocaine. This time the drug buy took place in a vehicle equipped with an audio transmitter that provided real-time audio of any conversation in the vehicle to a surveillance team comprised of Task Force officers, headed by Peter Glidewell. The CI, as a backup plan in case the transmitter failed, was given a micro-cassette recorder. An officer from a neighboring county, Bill Pitmon, participated undercover, driving around with the CI, his wife, and appellant, looking for crack cocaine. Because the CI was in a moving vehicle with appellant, the surveillance team was not able to hear everything that happened in the vehicle, although they were able to listen to some of what happened via the transmitter. However, Glidewell testified at trial that while he heard appellant’s voice, he did not hear the drug transaction transpire because of the tranmitter’s faulty reception. The police also had, however, the recording of the transaction on the micro-cassette tape the CI had hidden in his pants. Glidewell testified that the cassette tape the CI turned over to him was the original tape he placed in the micro-cassette recorder; that the recorder itself was capable of making an accurate recording; that he wrote appellant’s name on the outside of the cassette after retrieving it from the CI; and that an original copy of the incident was kept with his narcotics task force. During cross-examination, Glidewell conceded that he could not testify as to everything—most saliently, the transaction itself—that was contained on the tape. Pitmon testified that he saw appellant hand crack cocaine to the CI while they were all seated in the vehicle. Pitmon also testified that as they drove around appellant pointed out the houses they should not buy drugs from, all the while encouraging the CI and Pitmon to purchase crack cocaine only from him. Authentication of the Tape Appellant’s first point of error is that the trial court erred in admitting the audio cassette recording of the second drug transaction because it was not properly authenticated. We review the admission of evidence by the trial court for abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). The authentication requirement for admissibility “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Tex. R. Evid. 901(b). The rule, by way of illustration, provides examples “of authentication or identification conforming with the requirements of this rule.” Id. The examples relevant to this case are (1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be. . . . . (4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. (5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. Id. Appellant argues that Glidewell was not present during the events contained on the tape; that he did not testify as to any of the distinctive characteristics contained on the tape; and that he did not identify any of the voices contained on the tape. Appellant is correct. He only testified that he placed a tape in a device capable of recording conversations, made a copy of the tape after the transaction was completed, made a copy of the tape noting appellant’s name and the case number on, and that the tape had not been changed or edited in any way. Given this, we find that the tape was not properly authenticated. Glidewell’s testimony does not satisfy the requirements for authentication. Cf. Jones v. State, 80 S.W.3d 686, 687–88 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding that confidential informant’s identification of voices on tape was sufficient to authenticate tape under rules of evidence). Simply placing a tape in a tape recorder and later retrieving it is not enough. Therefore, we hold that it was error for the trial court to admit the tape without sufficient authentication. However, the error was harmless. See Tex. R. App. P. 44.2(b); Prible v. State, 175 S.W.3d 724, 737 (Tex. Crim. App. 2005). “The Rule 44.2(b) harm standard is whether the error in admitting the evidence had a substantial and injurious effect or influence in determining the jury’s verdict.” Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). As appellant’s trial counsel noted: “my other objection to the tape is that I think that Officer Pitmon could authenticate this tape.” Pitmon should have been able to authenticate the tape, but was not asked to. However, Pitmon did testify to everything that happened while he, the CI, and appellant were driving around in the vehicle—the same evidence purportedly contained on the tape. Therefore, even though the evidence on the tape that was before the jury was not properly authenticated, substantively the same evidence was properly admitted via Pitmon’s testimony. Therefore, we hold that appellant’s substantial rights were not violated. Prible, 175 S.W.3d at 737. Accordingly, we overrule appellant’s first point of error. Extraneous Offense Evidence Appellant’s second point of error is that the trial court erred in admitting evidence of extraneous offenses alluded to by the CI on the recording made of the first drug buy. When a defendant challenges the admissibility of certain evidence in a hearing outside the presence of the jury, he need not renew his objection when the evidence is offered at trial in order to preserve his complaint for review. See Tex. R. Evid. 103(a)(1); Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986). However, if at trial the defendant states he has “no objection” when the evidence is offered, he waives his admissibility complaint. Moraguez, 701 S.W.2d at 904. This is precisely what happened here. During trial, the State proffered for admission the recording, and appellant’s trial counsel stated, “I have no objection.” Therefore, because appellant has waived any error for review on appeal we overrule his second point of error. Failure to Provide Notice Appellant’s third point of error is that the trial court erred in admitting the prior bad acts contained on the recording of the second drug buy and in the testimony of Pitmon because the State failed to provide notice of the acts. As an initial matter, appellant did not object at trial to Pitmon’s testimony. This he must do to present anything for review. Willis v. State, 785 S.W.2d 378, 384 (Tex. Crim. App. 1989). Therefore we must reject this portion of his argument. Appellant did object to the admission of the recording containing evidence of the extraneous offenses of prior cocaine purchases by appellant, arguing that the tape was not properly authenticated and that the State had violated the notice provision of rule 404(b). Tex. R. Evid. 404(b) (State may introduce evidence of extraneous offenses “provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial”). We have already ruled that the tape was not properly authenticated. The State appears to have admitted error here regarding the notice provision as well. The analysis portion of their brief focuses on a harmless error analysis. Given that, we conduct our own harmless error analysis to determine whether appellant’s substantial rights were affected. Tex. R. App. P. 44.2(b). “The Rule 44.2(b) harm standard is whether the error in admitting the evidence had a substantial and injurious effect or influence in determining the jury’s verdict.” Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). Here, the evidence of an extraneous offense cannot be said to have infringed on appellant’s substantial rights. Appellant complains that the objected-to tape contained references to prior cocaine purchases by him; however, as we noted in our analysis of appellant’s first point of error, this very same evidence was before the jury via Pitmon’s unobjected-to testimony. Therefore, because the evidence of prior cocaine purchases was before the jury in a different form, we hold that the error was harmless. We overrule appellant’s third point of error. Entrapment Appellant’s final point of error is that the trial court erred in failing to include in the jury charge an instruction on the defense of entrapment. Under Texas law, where a defendant possesses the narcotics before he meets the government agent, the evidence raises no issue of entrapment and refusal of a requested charge thereon is not error. McKinney v. State, 372 S.W.2d 699, 701 (Tex. Crim. App. 1963) Appellant’s argument is that “[i]f given the opportunity, the jury may have found that the State, in failing to produce [the CI], failed in its burden of proving that the criminal design did not originate in the minds of the government agents and that Appellant was not induced to commit a crime he otherwise would not have committed.” However, appellant clearly possessed the crack cocaine before he met the CI at the hotel. Therefore, appellant has offered no evidence to establish that his conduct was induced by the CI. Because appellant did not establish the prima facie case needed to be entitled to a entrapment defense, we hold that the trial court did not err in rejecting his request for a jury instruction on an entrapment defense. Accordingly, we overrule his final point of error. CONCLUSION We affirm the judgment of the trial court in all respects. Sam Nuchia Justice Panel consists of Chief Justice Radack, and Justices Taft and Nuchia. Do not publish. Tex. R. App. P. 47.2(b).