544 S.W.3d 844
Tex. Crim. App.2018Background
- Fowler was tried (with two consolidated burglary cases) and convicted of stealing a Kawasaki Mule ATV; jury assessed two years' confinement.
- Officers found a Family Dollar receipt near the recovered ATV listing duct tape, air freshener, utility knives/"cutters," and razor scraper; packaging for cutters was also found nearby.
- Officers obtained the store's surveillance monitor, and under officer supervision another officer used a police camera to record the store monitor; that recording (no audio) was copied to a hard drive and offered at trial.
- Officer Torrez testified he asked the store manager to pull video at the receipt's date/time, that the video showed Fowler purchasing items matching the receipt, and that the timestamp on the video matched the receipt.
- Defense objected that the exhibit was an unauthenticated, incomplete recording (a recording-of-a-recording) and that the State failed to call store personnel or a witness familiar with the surveillance system.
- The trial court admitted the video after finding Officer Torrez supplied facts sufficient for a jury to find it authentic; the court of appeals reversed on authentication grounds, but the Texas Court of Criminal Appeals reversed that reversal and remanded for consideration of an unaddressed issue.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Fowler) | Held |
|---|---|---|---|
| Whether a video can be authenticated without testimony from someone who witnessed the recorded events or who can vouch for the recording device | Authentication may be established circumstantially through distinctive characteristics and circumstances (timestamp matching receipt; officer asked manager to pull video; video shows Fowler buying listed items) | Must produce witness from store or custodian of the original to show the original recording is accurate and the system/date/time was correct; recording-of-a-recording is inadequate | Yes. The Court held circumstantial evidence (distinctive internal characteristics plus surrounding facts) can suffice; trial court did not abuse discretion admitting the video |
| Standard of appellate review for authentication rulings | N/A | N/A | Abuse-of-discretion; trial court need only find facts sufficient for a reasonable jury to find authenticity (liberal standard) |
| Effect of admitting recording-of-a-recording | N/A | Recording is incomplete and untrustworthy without original | Recording-of-a-recording is not per se inadmissible if predicate facts support authenticity; completeness not determinative |
| Whether admission of the video required reversal despite sufficiency of evidence | State: other evidence supports conviction | Fowler: erroneous admission required reversal | Court of Criminal Appeals held admission was proper; reversed court of appeals' reversal and remanded to address other unreviewed error points |
Key Cases Cited
- Kephart v. State, 875 S.W.2d 319 (Tex. Crim. App. 1994) (authentication of video treated like still photograph)
- Butler v. State, 459 S.W.3d 595 (Tex. Crim. App. 2015) (trial court need only find facts sufficient for reasonable jury to find item authentic)
- Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) (authentication may rest on distinctive internal characteristics and circumstances)
- Winegarner v. State, 235 S.W.3d 787 (Tex. Crim. App. 2007) (video images without audio treated as photographs for authentication)
- Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) (use of internal characteristics can authenticate evidence)