Angleton v. State

discretion, we cannot con- judge’s exercise matter law that he abused that

clude as a attorney’s declining to award

discretion appellants’ We therefore overrule

fees. point of error.

ninth

THE CROSS-APPEAL by cross-ap- contends

The Commissioner erroneously

peal that the trial court held one 85.31, rules, proposed invalid. pro- that all the have determined above

We rules are for want substan-

posed invalid compliance APA section 2001.024

tial Code

and Texas Government section

2006.002(c). We overrule the therefore Com- cross-point.

missioner’s judgment inso- reverse the trial-court

We proposed it holds rules save

far as all invalid; are we affirm the

Rule 85.31

judgment below as it declares Rule insofar attorney’s award

85.31 invalid declines to judgment appellants. de-

fees to We render invalid,

claring each of rules the sole requested appellants,

relief for the rea- See opinion. Tex.R.App.

sons stated our 43.2(c).

P. ANGLETON, Appellant,

Robert Nicholas Texas, Appellee.

The STATE of

No. 14-97-00880-CR. Texas, Appeals of

Court of (14th Dist.).

Houston 30, 1997.

Oct.

Discretionary Review Granted 21, 1998.

Jan. Houston, Schneider,

Stanley appel- G. lant. Houston, Curry, appellee.

Alan C.J., MURPHY, Before and HUDSON FOWLER, JJ. order, obtaining a After OPINION California. Vegas Las officers traveled to Houston MURPHY, Chief Justice. Roger’s property and recovered found Appellant, Angleton, was Robert Nicholas pass- contained The briefcase briefcase. capital arrested for murder and is confined license, micro-cas- forged driver’s ports, After a County jail Harris without the bond. notes, hand- typewritten tape, sette several proof hearing, the trial denied evident court $5,000.00 notes, money some written and corpus appellant’s for application habeas envelope. wrappers Roger in a white seeking Appel- release on reasonable bail. $64,242.00 possession in in cash at the also of perfected appeal. lant of his time arrest. error, points appellant complains In five of 1997, 1, August appellant arrested On deny- trial its in the court abused discretion charges capital complaint The ing pending him bond trial the State because Roger An- appellant employing Nicholas proof jury failed to meet its burden of Angleton gleton to the death Doris cause guilty capital and would find him murder promise and the of remu- “for remuneration punishment special answer the so as issues neration, to MONEY.” wit: CASH penalty. suggests invoke the death He Appellant application an for writ filed $100,000. Appellant we set bond at also corpus a motion that the trial habeas and that, argues during hearing, the writ the trial 8, hearing August court set bond. After on admitting corn't erred in into 1997, mo- appellant’s the trial denied allegedly a conversa- contains application for writ of tion for bond and brother, appellant Rog- tion between and his corpus. habeas Contending Angletоn. er the State properly recording, failed to authenticate the Evident Proof appellant argues the inadmissi- contains hearsay. ble may deny capital judge The bail proof ‍​​​‌‌‌​​‌‌​‌​‌‌‌​​​‌‌​​​​‌‌​​​​​​‌‌‌‌‌‌‌‌​‌‌‌‌​​‍is cases where the evident. Tex. Background (Vernon 1984); 1, § 11 art. Ann. Tex. CONST. 1977). (Vernon 16.15 art. 16, evening Wednesday, April On the Code Crim. Proc. “proof evi The term is evident” means the 1997, Angleton, complainant, Doris the strong, clear leading is and well- dence dropped game off her children at a softball guarded dispassionate judgment and to the forgotten and went to retrieve bat. home 1) capital mur conclusions that the offense of She never game. returned ball Some- 2) committed; is der has been thе accused p.m., between time the hours of 7:15 and 9:15 3) guilty party; jury and will both Doris was shot death in her Houston findings and will return convict accused home. State, requiring a death sentence. Beck v. husband, appellant, brought Doris’s 7, (Tex.Crim.App.1983); Ex 648 S.W.2d 9 game their children home after the and tele- (Tex. Alexander, 928, parte 608 S.W.2d 930 phoned police something when he noticed Wilson, 527 Crim.App.1980); parte Ex investigating The amiss. officers found 310, (Tex.Crim.App.1975); see S.W.2d 311 complainant’s body in a doorway between Graves, 701, parte also Ex 853 S.W.2d were kitchen rest of home. There 1993, pet. (Tex.App.—Houston [1st Dist.] signs entry at the no forced scene. ref'd). 28, 1997, April appellant a state- gave On April proof The on the State рolice ment to the about the events of burden Beck, 29, 1997, April gave proof 16. On he a statement to show evident. brother, 9; Alexander, The implicated Roger his at 608 S.W.2d at 930. which ac being showing” in the burden of the Angleton, possibly as involved “substantial less July guilt hearing bail is far complainant. murder of cused’s at the On “beyond Roger An- the trial burden of a reasonable the Houston learned than (Tex. State, 8, 9 Vegas, Lee v. gleton had arrested Las Ne- doubt.” been vada, Diego, Crim.App.1985). arrest warrant out of San

The State must also establish jury that the The Evidence appellant will assess penalty. the death against The State’s appellant case issues jury in assessing considers primarily built on circumstantial penalty death are: proof fact, “direct secondary of a which logical probability whether there is a inference demonstrates the ultimate proved.” Taylor defendant would commit fact to criminal acts of violence that S.W.2d would constitute a con-

tinuing society; threat to Documents (2) in cases in which jury charge at the that, suggests The State as a motive guilt or stage permitted innocence murder, complainant were jury to guilty find the defendant as a process getting sup a divorce. To party 7.02, under Sections 7.01 and Pe- port allegation, this the State introduced Code, nal whether the defendant actu- complainant’s petition for divorce into the ally caused the death of the deceased prove appellant’s record. To involvement in or actually did not cause the death of crime, typewritten the State introduced the deceased but intended to kill the and handwritten Roger Angle- notes found in deceased or anticipated another or that appellant ton’s brief ease it claims link a human life would be taken. planning and execution Angleton’s of Doris 37.071(2)(b) Ann. Art. Tex.Code Crim. Proc. murder. (Vernon Supp.1997). 901(a) Rule of the Rules of Criminal Evi jury If unanimously “yes” answers to provides dence generally, that when authen issues, the above it must unanimously then tication or necessary, identification is the re answer follоwing “no” to the issue: quirement “is satisfied evidence sufficient support to finding ques the matter in Whether, taking into consideration all of tion is what proponent its claims.” Tex. including the circumstances 901(a). problem The of au R.Crim. Evid. offense, of the the defendant’s character thentication, however, arises whenever background, and personal and the moral relevancy any depends upon evidence its culpability defendant, of the there is a source, identity, or particu connection with a sufficient mitigating circumstance or cir- person, place, lar thing, or event. Kep See cumstances to warrant that a sentence of State, (Tex.Crim. 319, hart v. 321 imprisonment lifе rather than a death sen- App.1994) Goode, (quoting S. Wellborn O.G. imposed. tence be Sharlot, & M.M. Texas Rules of Evidenoe: 37.071(2)(e) 901.1, 2 Criminal Sec. Texas Prac Tex.Code Crim. Proc. Ann. Art. Civil and (Vernon (2d Ed.1993).); Supp.1997). tice 192 see also Tex.R.Crim. 104(b). Evid. type appeal, appellate In typewritten The documents were found put position. a difficult On one Roger Angleton’s possession spe- and contain hand, we must follow the lead of the Court of cific details about the alarm gate code and Appeals Criminal “not set out the facts in house, Angleton code to the and outline a detail or comment on sufficiency of the plan for a murder. The also documents prior to trial on the merits.” See post-crime trace a course of events ac- Alexander, 929; 608 parte S.W.2d at Ex tions appellant that tend to connect with the Wilson, 527 S.W.2d at 311. On the other hand, while the decision of the judge trial proof weight evident is entitled to Tape Recording appeal, reviewing court must review the evidence and determine whether bail was The also State introduced audio Alexander, properly denied. 608 S.W.2d at into evidence. The State claims ‍​​​‌‌‌​​‌‌​‌​‌‌‌​​​‌‌​​​​‌‌​​​​​​‌‌‌‌‌‌‌‌​‌‌‌‌​​‍the 930; Hickox, parte Ex 90 appel Tex.Crim. 233 is a conversation between (1921). 1100, 1101 S.W. lant and his brother which the men osten- Angle- appellant Roger Appellant tape as those of sibly plan complainant’s murder. proрer ton. has laid the contends State tape. We

predicate authenticate the cross-examination, Ferguson admitted On agree. knowledge of not have he did where, how, when, who or Appeals has Court of Criminal recording. could neither swear He circumstantial evidence held direct and recording of conversa- an accurate 1) are to be the same manner treated purported represent, nor could tion it establishing required purposes proof testify accuracy equipment as to 2) recordings, are for admission of sound fact, recording. In officer that made the equal probative weight purposes tape other offered no information about the determining admissibility of record sound testify than to was an “enhanced” State, ings. See Cowan v. An- copy Roger found in of micro-cassette (Tex.Crim.App.1992); Wallace gleton’s briefcase. S.W.2d rebuttal, produced long- six As 901(b) Rule several ex- lists non-exclusive acquaintances time friends and as witnesses. amples may of how accom- authentication not, they beyond They all testified could 901(b)(1), “Testimony plished. entitled doubt, identify either voice on a reasonable knowledge,” provides for au- of witness appellant. tape to be that of the the by “[testimony of thentication evidence a matter is what it is claimed to be.” This tape proрerly the can be Before audio requires sponsoring rule the witness to have properly into it admitted must knowledge pro- that the evidence is what its recording’s to authenticated. The relevance says ponent Kephart, it is. at depends tape case whether or not it is a appellant Rog- of a between and conversation Angleton. to required The State was er witness, Sergeant The State’s David Fer- testimony furnish of a witness who could tape guson, presented at admitted tape it verify the what the claimed was State hearing original tape not the record- evidence, we to In the of such be. absence in ing Roger Angleton’s found briefcase. lаy predi- proper the State failed to find Ferguson provide Neither was able to tape into for the to admit cate court any with court information as to how the appellant’s evidence. We sustain fourth tape from original offered differed re- point of error. cording other than had been “enhanced.” Ferguson attempted to authenticate Conclusion tape recording by identifying on the voices record, can After a review of we tape appellant as those of and his broth- there agree appellant’s with claims that 901(b)(5) er, Roger Angleton. provides support the conten is no evidence to State’s by a testimony for authеntication in which appellant and his brother committed tion voice, makes witness of a “[i]dentification However, we Angleton. the murder Doris through heard firsthand or mechani- whether agree the did not meet its burden State recording by cal or electronic transmission or strong by producing and proof evident clear hearing any opinion upon based the voice at jury appellant would convict it with connecting time under circumstances murder, capital jury or that would alleged speaker.” punishment special in issues such answer tape to an Because contains references way that assess the the trial would home, alarm at the the State earlier call penalty. appellant’s first We sustain death tape April made claims after points of and second error. shortly and before the Officer in find Ferguson spoken also We the trial court erred testified he had find appel “proof justify denying appellant ing his on several evident” with and brother Although pre-trial identify on the lant’s motion for bail. occasions could the voices appeals, has asked this court to set police bond not court of criminal are that the $100,00.00, to exceed we decline. King detained Manuel Conde and Carol out possession side their motel room for of coc Admitting an charged individual search, obtaining aine.1 After a consent to with a bail presumption crime to balances the paraphernalia, discovered co narcotics of the accused’s innocence with the State’s residue, videotape caine inside their compelling appear interest that the individual videotape motel room. The contained sever to answer against the accusations him. See d scenes, noncontiguous by al interrupte (Tex. Balboa v. pauses. Although segment depicted the final Crim.App.1981); see also Tex.Code Crim. room, King in Conde and the motel the be (Vernon Supp.1997). Proc. Ann. Art. 17.01 ginning segments were in high enough amount bail must be party, Kephart. home a third Deborah give reasonable assurance the accused will Kephart appeared Ms. varying appear required, op as but should not be sobriety states of and intoxication. The pressively high. See U.S. Const. amend. Kephart sitting also showed near table VIII; I, 11,13. § Nothing Tex. Const. Art. Conde. A a baggie white substance and provides the record this court with evi appeared what to be marihuana were visible bail, appellant’s ability dence of to make nor holding baggie the table. As Conde was is there evidence of what amount of bail nose, powder, Kephart of white blew her appellant’s would be ap sufficient insure said, “Getting gal Conde some that’s nosin’ pearance. Tex.Code Crim. Proс. Ann. Art. her coke.” (Vernon Therefore, 17.15 Supp.1997). we by police, Kephart When interviewed ad- pre-trial find the issue of bail would be best King mitted that Conde and had used cocaine Appellant’s resolved the trial court. third Kephart any while in her home.2 denied point of error is overruled. drugs question use of on the date Accordingly, we reverse and remand for a and stated that she became intoxicated on hearing appellant’s new motion for pre- However, King alcohol. testified as an ac- Tex.R.App. 43.3(a). trial bail. P. complice witness for the State and said that gone Kephart’s she and Conde had home HUDSON, Justice, dissenting. bags baking with of cocaine and sodа to The of Appeals pro- there, Court Criminal has crack King make cocaine. While said mulgated rules of govern evidence “to crimi- Kephart used straw to inhale some of the nal in proceedings courts of Texas.” Tex. cocaine from a mirror. King also said that 101(b). plain Under the word- Kephart R.Crim. Evid. of crack in smoked some cocaine ing of I Rule believe the met pipe. pipe State has Both the mirror and the were authenticating tape room, its burden of record- King’s recovered from motel and both However, ing at apply issue. if we the literal items were contaminated with cocaine resi- State, holding in Kephart v. 875 319 videotape S.W.2d due. The State offered the us, (Tex.Crim.App.1994) to the case before King’s testimony, Kephart corroborate necessarily ignore we must much of Rule possession in-an was convicted of of cocaine 901(b). Believing Ap- of twenty-eight Court Criminal grams. amount under peals intentionally “repeal” would not a rule appeal, Kephart argued tape On that the per opinion, of in a curiam I am should not have been admitted because the significance forced to discount the of that lay seven-prong predicate State failed to decision. tape recordings for the introduction of recit (Tex. State, Kephart,

The facts in as v. 551 731 related ed Edwards S.W.2d opinions appeals Crim.App.1977).3 appeals of both the court of The court of af- State, (Tex. Kephart adoption 1. See v. 888 S.W.2d 828 3. Prior to the of the Texas Rules rev'd, 1993), App.—San S.W.2d 319 Antonio Criminal Evidence the authentication of audio (1994). tapes governed by seven-prong test set forth Edwards Later, statement, Kephart in a written referred predicate for admissi- only powder.” to the substance as a "white of authentication.4 method this is one concluded that “be- the conviction and firmed 901(b) fact, examples of recites nine videotape by not made law In Rule cause upon is the tes- personnel, predicate rely usual not that do enforcement authentication Kephart, knowledge. at 827- One applicable.” witness with timony of a review, discretionary provided the Court expressly 28. On authentication method of predicate that the Appeals by observed rule, Kephart, Criminal is ignored in by the but now tape recording is ie., for admission of “[a]ppearance, circumstantial by the Rules of Crimi- controlled Rule 901 of substance, oth- contents, patterns, or internal held that The Court further nal Evidence. characteristics, in con- taken er distinctive applicability 901 lessens its nothing Rule junction circumstances.” Tex.R. Civ. tape recording was not simply because 901(b)(4). Evid. by personnel. Under law enforcement court, appellate we are As an intermediate 901(b)(1), held the State was Court of the Court of Crimi- by the decisions bound produce sponsoring witness required to However, I believe the Appeals. nal testify is what “that the evidence who could tape that a only to hold meant says Kephart, 875 proponent it is.” its regardless whether must be authenticated sponsor- at 321. Because the State’s S.W.2d personnel. by law it was made enforcement knowledge of no ing witness “had Kephart it is unfortunate While made, tape where or when the had been illus- only one of the ten opinion focused on he could not ... state that [and] 901(b), I in Rule doubt trations set forth accurately represented the actual sсene or for us to by that omission court intended occurred,” event at the time Court of authentication ignore all other methods Appeals held the was inadmis- Criminal significant It is by the rule. illustrated Kephart, sible reversed the conviction. has had no Kephart, the court apart from at 322-23. S.W.2d issue of whether to consider the occasion face, Kephart suggests its On tape recordings can be es- authentication of Appeals Court of Criminal has concluded evidence. While tablished circumstantial proponent can never authenticate the intermediate status of recognizing testimony tape recording without the of a Court, decisis not believe that stаre do (1) sponsoring who either the mak- witness draftsmanship pursue poor compels us to partici- er of the or was otherwise a Appeals path down a the Court Criminal con- pant in the recorded conversation. This not intend us fully explored and did has not contrary plain wording struction to follow. authentica- provides the rule. Rule 901 that opinion not discuss Kephart did While by any suffi- tion can be satisfied “evidence by circumstantial authentication support finding a that matter in cient to readily have endorsed other courts proponent question is what its claims.” Lavers, 376, 168 Ariz. State v. method. See require by authentication rule does not denied, 333, 343-46, cert. 502 U.S. 814 P.2d testimony knowledge, of a witness with but (1991) 343, 926, 116 L.Ed.2d 282 purposes 112 S.Ct. merely suggests for of illustration “(1) admissibility guide electronic sound required proponent bility to make: a tive 209, State, capable 211 showing recordings. v. that the device was Leos (2) testimony, showing operator of a taking that the The authentication a (3) competent, governed by tape recording of the device was establishment Rule 901 of is now recording, authenticity and correctness of the which states: of Criminal Evidence Rules additions, (4) changes, showing or dele- a requirement or identifica of authentication "The made, (5) showing not of the admissibility tions have been precedent ‍​​​‌‌‌​​‌‌​‌​‌‌‌​​​‌‌​​​​‌‌​​​​​​‌‌‌‌‌‌‌‌​‌‌‌‌​​‍as a condition tion (6) recording, preservation manner of the of the support by a find evidence sufficient satisfied (7) showing speakers, and identification propo question ing is what its that the matter in testimony voluntarily made elicited was Stapleton v. nent claims.” Edwards, any 551 kind of inducement.” without 781, 1993). (Tex.Crim.App. 786 S.W.2d at 733. 901(b) examples authenti- 10 However, sets forth adoption because the of the Texas only, by not “[b]y way of illustration superseded cation the Ed- Rules of Criminal Evidence test, way longer an authorita- of limitation.” it is no needed as wards 662

(tape recording later, by 16, double murder Wednesday, April made Two months on 1997, one of circumstantially the victims was au Angleton Ms. was murdered. by physical thenticated under Rule 901 evi statement, appellant In a sworn said that dence that the manner of death was consis team, manager girls as the of a softball he tent with tape); the events heard on the warming up game was for a at the West People Berkey, 40, v. 437 Mich. 467 N.W.2d Field, University League Little when he re- (1991) (where 6, 9-13 victim recorded conver forgotten daughter’s alized he had his bat.- sations shortly with ex-husband before he approximately p.m., appellant At 7:15 asked her, successfully paid another to kill his if bring up wife she would the bat tapes were authenticated under Rule 901 home, Angleton field. Ms. left for but did merely by the identification of the voices game. Appellant not return to the claims alone). Bright, Also United States v. 630 game, that after the girls he took his home. (5th 804, Cir.1980) (tape by F.2d made car, driveway parked He entered the police informant who died before trial was immediately but noticed that the back door by authenticated circumstantial evidence un open. Appellant did enter der four-prong test of United States v. house, police. but summoned After the (5th Cir.1977));5 Biggins, 551 F.2d Unit arrived, police they Angle- discovered Ms. O’Connell, 1408, ed States 841 F.2d 1419- body ton’s doorway. the kitchen Police (8th Cir.1988) (tape by police seized dur sign entry could no of a find forced into the ing execution of search properly warrant was During residence. subsequent questioning, by authenticated circumstantial evidence un appellant police told was a bookmak- he v, seven-prong der the test of United States er, brother, Roger Angleton, that his had McMillan, (8th Cir.1974), 508 F.2d 101 cert. business, bookmaking worked for him in the denied, 916, 1577, 421 U.S. 95 S.Ct. might and that his brother had a motive have L.Ed.2d 782 which the same contains for'killing the victim. test); elements as the Edwards State v. Smith, 424, 85 Wash.2d 540 P.2d 428-29 22, 1997, Roger Angleton June On (1975) (tape by murder victim was by police arrested Las Vegas on an unrelated circumstantially authenticated under Ed was, California warrant. He at the time test). type wards arrest, possession his of a microcassette notes, tape, license, forged pass- driver’s presented believe under the facts $64,000 ports, Sergeant in cash. over here, tape recording at issue was suffi- Ferguson July testified that on ciently authenticated circumstantial evi- Roger Angleton became aware that been had dence. The State established that on Febru- learning Vegas arrested. After that the Las 7, 1997, ary Angleton petition Doris filed possession were still in of his husband, against appel- divorce her property, Ferguson Vegas flew to Las alleged petition lant. She within the 22, 1997, July Roger where he recovered large maintained a amount of cash Angleton’s pursuant briefcase to a court or- deposit in safe boxes of four different banks. Houston, returning Ferguson der. After affidavit, said, In Angleton an attached Ms. authorizing obtained search warrant him to “I fear that I once he learns havе filed this to petition, listen the microcassette found inside empty divorce he the that will these safe deposit upon briefcase. Based conversations with boxes and will have no nor record any Roger both ability prove Angleton, Ferguson to Robert and such cash ever petition request existed.” The identified the voices of both men on the contained temporary restraining prevent Ferguson order to microcassette. also testified that entering deposit from the safe he made in box- no alterations or deletions the during pendency es tape. the of the divorce action. microeassette admittedly tape necessary 5. "While it is better hаve circumstantial evidence is to authenti- accuracy recording, authenticated a witness who was cate the the court made, privy exacting requirements.” Bright, to the conversation as the was must be in its possible. recognize always we that is not When 630 F.2d at 820. m00032”; in door”; syste “wait “disarm introduced hearing, the State At the bail home, kitchen”; “subject hit immedi tape. Sergeant comes copy of the an “enhanced” listened to via back en girl testified that he had if leave Ferguson ately with either trance”; prob and the en- original “rummage plus the microcassette house watch both recording expert bathroom”; copy. Although the hanced ring unless off dish no as a coрy was not called entrance, who “enhanced” tape and break back “leave via witness, that other than a Ferguson testified entrance, open?”; leave door window noise, he could background in the reduction sign in front of open or leave gate “leave between discern no audible difference “(can done”; you with pge is house and the enhanced original microcassette done)”; of hit to leave 3 “point is code that copy.6 minutes”; game, page signal”; gong “if not thursday following or follow “preference or on the are some- Although the voices you if Wednesday”; “Monday possible ing inaudible, clearly be the two men can times hоuse”; out “mon get temporarily her can discussing planned murder of a heard 100,000 125,000”; 20 dr so ey “October They typewritten to a list and woman. refer in October they reading 000 thereafter annualized though as are at times sound (less 12,000 advanced”; “if phrases are identi- arrest from a list. Some of the until 2005 cryptic notes seized future designee”; cal to those found “on keeping paying to ed According Roger Angleton’s briefcase. from as to when and money have to work with me agrees house plan, Roger to the to enter the where”; letter “will send future vendetta using the code 00032.7 clinch”; and disarm the alarm “MY CONTRACT WITH which wifi Roger in how to arm the Appellant instructs SQUEEL- KILL AND NO YOU IS THE path outside the detection alаrm and remain ING, TO DES IF KILLED CUT MONEY by waiting sensors in the kitch- of the motion THE METHOD PARTIES. IGNATED Roger en. states that he intends to use BY ME YOU IS TO GIVE DESIGNED weapon sight with a laser untraceable TO ALIBI AND AND PERMIT POLICE enters make the hit. As soon as the woman ME.” FOCUSE ON alarm, Roger the house and disarms the by cir- here Authentication established rapidly states that he will shoot her three The State established cumstantial evidence. down, times to take her and that once she is The execution was a motive for down, he finish her. The men also talk will largely accomplished in a manner that taken to about what measures should be tape: plan outlined on the consistent with appear was killed when make woman kitchen; (1) Angleton was killed Doris burglar. Appellant surprised suggеsts, she (2) multiple gunshot wounds she had therefore, not shot in the back. that she (3) head; not ran- the house was chest and prefer not to Roger states that would (4) sacked; sign no of forced en- there was rummage the house. The men also discuss open. try; door was left back contingencies might which arise various Roger Angleton Robert The voices of planned execution. The con- could alter Sergeant Fer- tape. on the were identified abruptly in a manner that versation ends or guson testified that no additions deletions suggests stopped recorder before the tape. acquired after he were made conversation concluded. Moreover, systemаtic nature of the con- clipped typewritten notes contain steady background noise versation and suggest a murder for hire. Re- phrases that selectively suggest grammatical errors that taining the same making. during its stopped and started following ominous appear original, in the Further, on the the alarm code discussed “ENTER in the notes: remarks are found appellant’s tape was the correct code for gate and back side 8:15-80 via ABOUT the alarm Appellant to preferable for the 7. admitted would have been 6. While it testimony regarding how the back- home was 00032. State to offer code for his reduced, probative value ground the of noise was spokеn, recording upon the words the rests background presence noise. or absence of on the State,1 only way a or wife’s There holds that the video home at the time of his death. guilty knowledge in that tape properly is some evidence of can be authenticated and audio of his when saw the back door thereby proponent if for the introduced is the apparently no at- open, home was tape personal introduction of the has knowl- house, tempt investigate to enter the the (1) tape edge of where or when the was made door, open reason for the or even call out his “tape accurately and therefore the Finally, in a case of murder for wife’s name. represented at the the actual scene or event hire, reasonably expected might be Kephart, at time it occurred.” trigger the man would want to retain some of agree 322-323. I with this conclusion the incriminating guarantee pay- full majority. completing the The ment after dissenting opinion argues that the The notes, tape, along found in with the were through Appeals has the Court of Criminal Roger Angleton’s possession. tape The is opinion effectively per Kephart curiam re- penal clearly against a statement interest (b) pealed part of rule 901 of the rules of authenticity. significantly enhances its which dissеnting opinion criminal evidence. The here, presented the Under circumstances presented argues enough also that the State tape in considering trial court not err did sufficiently tape evidence to authenticate deciding recorded statement when whether the voices on the because the State identified deny bail. defendants’, presented cir- tape as the may capital Bail be denied for offenses connecting the discus- cumstantial evidence satisfactory showing when State makes See, dissenting opinion to the murder. sion proof that “the is evident.” Tex. Const. art. also, Bright, 630 supra; see United States v. I, “proof § means 11. The term evident” (5th Cir.1980); Lavеrs, 804, F.2d State leading a strong, evidence clear and well (1991). 333, I 168 Ariz. 814 P.2d 343-45 that an guarded judgment to the conclusion arguments. agree with both of these committed, offense was that the accused probably guilty agent that he would But, spite my agreement with the if punished by penalty law is be death dissent, majority. join I must The Court Beck v. administered. S.W.2d Appeals promulgated this state’s of Criminal (Tex.Crim.App.1983). I Because believe of criminal evidence. See Tex. Govt. rules cause, proof respectfully in this I is evident rulemaking (giving § 22.109 the court Code dissent. promulgation of rules of evi- power cases). Like- dence to be used criminal FOWLER, Justice, concurring. wise, Appeals has ulti- of Criminal Court position myself disconсerting I in a find interpretation the rules of say in the mate every single statement agree because evidence, and, appellate as an intermediate opinion, yet, I am obli- dissenting in the pronounce- court, to follow its we are bound join majority opinion. As gated to Kephart, the court has stat- Through ments. dissenting opinions majority and both the only by tape can authenticated ed that explain, ultimate issue before us is how personal knowledge of where someone with audiotape— an can the State authenticate because, made, tape was without or when the by one of appears to have been made which state the knоwledge, one cannot during planning of the two co-defendants accurately represents the actual scene wives— of one of the co-defendant’s murder Kephart, occurred. or at the time it event acknowledge when the defendants refuse Kephart, at 322. The effect or the either the session planning not, from prevent is to the State intended or it. Tex.R. Evid. See containing a conver- introducing audiotape if neither sation between two defendants majority opinion concludes acknowledges that the the defendants introduced contents of the could not be their conversation. See accurately recorded per opinion curiam as evidence because a prevent the State from It would also Appeals, Kephart v. id. the Court of Criminal 1. 875 S.W.2d 322-323

665-685 audiotape by a com- introducing an made died, though even evi- plainant who later reliability accuracy of dence indicates Lavers, ‍​​​‌‌‌​​‌‌​‌​‌‌‌​​​‌‌​​​​‌‌​​​​​​‌‌‌‌‌‌‌‌​‌‌‌‌​​‍id; tape. compare State v. See (holding could at 343-45 that State 814 P.2d complain- by introduce deceased during deadly assault because

ant by other circum- recorded events confirmed crime.). If that stantial evidence intended, court then the

what purpose intended uses explain

should (b) If that result was part of rule 901.2 intended, the con- the court must correct per opinion curiam has created.

fusion the takes, Regardless position it of which up ap- responsible clearing court is

parent conflict the Edwards3 seven between part(b) of rule 901.

part test and reasons, join majority

For these yet separately.

opinion and choose to write form of authenti- example, monograph to envision reasonable on the Texas hard 2. For one cating proof would not be embraced following part about Evidence states the Rules of these illustrations. (b) of rule 901: Practice, Goode, al., et Texas Guide 2 Steven 901(b) are While the ten subdivisions of and Criminal 194 of Evidence: Civil the Rules aggre- limiting, they are in illustrative and not 1993), (citing & David Louisell Christo- (2d ed. comprehensive—especially Mueller, gate § so at pher Federal Evidence B. (b)(1) language (1981)). general on testi- subdivision mony ‍​​​‌‌‌​​‌‌​‌​‌‌‌​​​‌‌​​​​‌‌​​​​​​‌‌‌‌‌‌‌‌​‌‌‌‌​​‍a matter "is what it is claimed (Tex.Crim. (b)(4) char- S.W.2d 731 on "distinctive be” and subdivision Edwards App.1977). and "circumstances"—that acteristics”

Case Details

Case Name: Angleton v. State

Court Name: Court of Appeals of Texas

Date Published: Jan 21, 1998

Citation: 955 S.W.2d 655

Docket Number: 14-97-00880-CR

Court Abbreviation: Tex. App.