Roland Lashun Jernigan v. State

Affirmed; Opinion Filed December 16, 2014.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00674-CR

ROLAND LASHUN JERNIGAN, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-11-59314-N

MEMORANDUM OPINION
Before Justices Bridges, Lang, and Evans
Opinion by Justice Lang

Following a plea of not guilty, appellant Roland Lashun Jernigan was convicted by a jury

of burglary of a habitation. Additionally, appellant pleaded true to one enhancement paragraph

and the jury found that enhancement paragraph true. Punishment was assessed by the jury at ten

years’ imprisonment.

In four issues on appeal, appellant contends the trial court erred by (1) not instructing the

jury that an accomplice witness’s testimony must be corroborated by other evidence and (2)

improperly admitting into evidence certain video recordings and “GPS evidence.” We decide

against appellant on his four issues. The trial court’s judgment is affirmed. Because all

dispositive issues are settled in law, we issue this memorandum opinion. See TEX. R. APP. P.

47.2(a), 47.4.
 I. FACTUAL AND PROCEDURAL BACKGROUND

The indictment in this case alleged in part that on approximately August 15, 2011,

appellant entered a habitation without the effective consent of the owner and committed theft.

The record in this case involves a composite of accomplice testimony, law enforcement

surveillance, convenience store observation videos, and “GPS” 1 tracking of vehicles. We

describe the evidence in great detail in order to address, in part, whether the accomplice’s

testimony was corroborated.

At the start of trial, the trial court held a hearing outside the presence of the jury at

appellant’s request to consider the admissibility of evidence respecting a “GPS tracker” used by

law enforcement officers in this case. During that hearing, Jeremy Chevallier, a property crimes

detective with the Carrollton Police Department, stated that prior to the commission of the

offense in question, he installed a “tracker” on a white Chevrolet Impala (the “suspect vehicle”)

that was suspected to have been used in several burglaries. The “tracker” was made by a

company named “Covert Track.” Chevallier testified he has used such “trackers” on many

occasions. According to Chevallier, “[b]asically the GPS tracker . . . sends out a signal to a GPS

satellite, and the satellite will position that GPS unit on a map,” which is displayed on a “web-

based tracking system.”

The State offered State’s Exhibit 1 as evidence at the hearing, which Chevallier described

as a nineteen-page printout of a “GPS tracker report” respecting the suspect vehicle. According

to Chevallier, State’s Exhibit 1 showed “what the tracker was reading” on the date of the offense

in question, including “all the streets and the times.” Chevallier stated he has received training in

the use the “GPS tracker” in question, including (1) watching “instructional information”

1
The record shows “GPS” stands for “global positioning system.”

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provided with the device, (2) reading about the device, and (3) using the device on his own

vehicle.

Defense counsel objected to State’s Exhibit 1 on the ground that it constituted hearsay.

The trial court overruled that objection. Then, in response to questioning by defense counsel,

Chevallier testified he (1) knows “no more than a layman knows about a GPS,” (2) had no

involvement in the development of the device in question, (3) has no training as to the “inner

workings” or algorithms of the device or how to “determine the liability [sic] of it,” (4) has no

specific knowledge of when the device used in this case was purchased or when it was last

calibrated, and (5) has no specific expertise in “tracking” and has not published any “peer review

articles” on that subject. Additionally, Chevallier testified (1) the data contained in State’s

Exhibit 1 was stored on Covert Track’s “servers” from the time it was collected in 2011 until

being printed out by him on the day before trial commenced and (2) he did not have “any care,

custody, or control of that data.”

At that point, defense counsel asserted an objection that the State had not “met the

predicate” for the admission of evidence respecting the “tracker” device before the jury because

Chevallier “is not an expert in this—with regard to this device.” Defense counsel stated in part,

“He may have the knowledge to use it, but he has no scientific knowledge or training with regard

to how this device works. It would be very much similar to a breath test device, Your Honor,

where the operator cannot testify as to the reliability and credibility of the device.”

The State responded in part that “the information is not considered expert testimony” and

Chevallier (1) is a “fact witness;” (2) “is explaining what is within the knowledge of every

common person; any lay witness”; and (3) “has specialized training in interpreting the GPS

tracker.” Additionally, the State argued that under Texas law, “[a] person may lack experience

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on how a piece of equipment operates but be qualified to interpret the data and equipment and

the data it collects.”

The trial court ruled that it “deems the testimony as well as the subject matter including

evidence gained as a result of the GPS tracking device admissible.” Then, the jury returned to

the courtroom.

The complainant, Cathy Davis, testified she lives at 11220 Strait Lane in Dallas County.

She stated that at 10:30 a.m. on August 15, 2011, she was at home getting dressed and heard “a

really loud noise.” She walked to the front of the house and saw the front door was open and the

door frame was broken. She stated that her purse, which she had placed on a small chair by the

front door earlier that morning, was gone. Her purse contained credit cards, her driver’s license,

some cash, and her phone. Davis called her husband and the police. She testified that when her

husband arrived home a short time later, he noticed that several golf clubs he kept outside were

missing. According to Davis, she learned one of her credit cards had been used “[p]retty

quickly” to make a $150 gas purchase at a 7-Eleven store. On cross-examination, Davis testified

she did not see an individual in her house or a car at her house at the time of the events she

described.

Sergeant Jack Adams of the Carrollton Police Department testified that on the date of the

events in question, he was “doing surveillance” on the suspect vehicle described above as part of

a burglary investigation. He stated several officers in an unmarked “command vehicle” were

using a laptop computer to track the movements of the suspect vehicle. Simultaneously, the

command vehicle and several other unmarked police cars, including one driven by Adams, were

covertly following the suspect vehicle. According to Adams, officers in the command vehicle

told him the suspect vehicle had parked on Strait Lane for several minutes and then left. Adams

testified that at that point, he was parked on a side street near Strait Lane. He stated that as the

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suspect vehicle drove by his location on the side street, he “was able to look in the car and see

[appellant].” According to Adams, appellant was driving the suspect vehicle. Adams stated

there was also a passenger in the suspect vehicle.

Detective Jack Perritt of the Carrollton Police Department testified he was part of the

burglary investigation described above. He stated he was in a vehicle on a street that intersected

with Strait Lane and saw the suspect vehicle “entering” Strait Lane. According to Perritt, there

were two black males inside the suspect vehicle. Perritt testified he “left the neighborhood” and

waited on a “main road” nearby. He stated that subsequently, the suspect vehicle pulled up next

to him at a red light and he looked inside the suspect vehicle to see if he could identify the driver.

According to Perritt, the driver of the suspect vehicle was appellant.

Chevallier testified he was involved in the same burglary investigation described above.

According to Chevallier, he was using a laptop computer to view the location of the suspect

vehicle on a satellite map while simultaneously riding in the command vehicle that was

physically following the suspect vehicle. Chevallier stated in part, “We don’t just rely on the

tracker itself and the data that we collect. We like to see who is in the vehicle, make sure it’s the

vehicle that we have the tracker on.”

Chevallier stated he recognized State’s Exhibit 1 as a “raw data report” he had “pulled up

yesterday.” He stated the report showed the location of the suspect vehicle on the date in

question from about 10:20 a.m. until “the next afternoon.” The State introduced State’s Exhibit

1 into evidence. Defense counsel stated, “No objection,” and State’s Exhibit 1 was admitted into

evidence.

Chevallier testified he saw the suspect vehicle enter the neighborhood around Strait Lane,

then later saw the suspect vehicle again as it left the neighborhood. According to Chevallier,

there appeared to be two black male occupants. After the suspect vehicle left the Strait Lane

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neighborhood, Chevallier and the surveillance team followed it to a 7-Eleven convenience store

in Dallas “at Skillman/Audelia.” Chevallier stated “at no point did we ever lose sight of the car

on [sic] the tracker or individually.”

According to Chevallier, the suspect vehicle arrived at the 7-Eleven store around noon.

Chevallier stated he and his partner “set up” across the street from the 7-Eleven and he watched

the area outside the store through a pair of binoculars. He testified he was able to identify the

driver of the suspect vehicle as appellant and the passenger as Demontric Lockridge. Chevallier

stated appellant and Lockridge appeared to purchase gas for several vehicles that “came in

through the line.” According to Chevallier, appellant was “at the pump that all the cars went to

and filled up like he was being the attendant.” Also, Chevellier testified, appellant went inside

the store. Chevallier stated that one of the officers on the surveillance team went into the 7-

Eleven and learned that the credit card used for the gas purchase belonged to “someone named

Cathy Davis.” Chevallier stated he obtained an address for Davis and went to her residence on

Strait Lane. He testified that at point he learned of the burglary at Davis’s residence.

On cross-examination, Chevallier testified State’s Exhibit 1 showed the suspect vehicle

arrived in the Strait Lane area at approximately 10:37 a.m. on the date in question and stopped

for slightly more than one minute on Strait Lane at approximately 11 a.m. Chevallier stated (1)

he was not “in actual contact” with the suspect vehicle at the time it stopped on Strait Lane and

(2) he and the other officers on the surveillance team did not see anyone from the suspect vehicle

enter a house. Additionally, the following exchange occurred between Chevallier and defense

counsel on cross-examination:

Q. . . . All the events that are registered in that State’s Exhibit Number 1, you
would testify that those events are accurate as to all the information contained
therein.

A. I would have to say based on what I saw on that day that the tracker was
working properly. Yes, sir.
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 Q. Now, let’s talk a little bit about what you saw and what you’ve come to see.
Basically, as the tracker indicates, it’s fair to say that their vehicle entered the
Strait Lane street or area approximately around 11 o’clock, is that correct—or at
11 o’clock if we believe that the tracker is accurate.

A. At that time, yes.
....
Q. Basically on page 9 of 19, it’s indicating that this is the data where the vehicle
entered Strait Lane; is that correct?

A. Correct.

Q. And I think the first notice or first documentation of him entering Strait Lane
was at 11 a.m.—straight up 11. Is that correct?

A. Yes.

Alex Gelan testified he owns a 7-Eleven franchise at 9230 Skillman. The store has video

surveillance cameras. Gelan testified he provided law enforcement officers with copies of video

surveillance recordings from those cameras. The State showed Gelan State’s Exhibit 3 and

State’s Exhibit 4 and asked him whether those exhibits were “copies from your video

surveillance system.” Gelan stated in part, “The one I said, yes.” Then, the State offered into

evidence State’s Exhibit 3 and 4. Defense counsel objected and stated, “We don’t believe the

proper predicate has been laid as to the authenticity of these videos and the veracity of them

being true and correct.” The trial court overruled that objection and admitted State’s Exhibits 3

and 4 into evidence.

On cross-examination, Gelan testified he is not sure whether he was at the store on the

date in question. Additionally, he stated, “I see the video. I don’t know what is on there.”

Officer James Burson of the Carrollton Police Department testified he participated in the

burglary investigation described above. He stated he and another officer were in a police

vehicle. He saw the suspect vehicle pull into the area in front of the 7-Eleven store on Skillman

and he watched the suspect vehicle from a nearby parking lot. He stated he saw the suspect

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vehicle “meet up with a couple of other vehicles.” Then, he testified, he saw the driver of the

suspect vehicle go inside the store. Burson stated that person was appellant.

Burson testified appellant was inside the store for approximately five minutes, then

“drove over to the gas pumps, Gas Pump Number 11, and joined the other two vehicles and filled

up with gas.” According to Burson, “all of that was captured on video.” Burson stated that after

the suspect vehicle left the area, he went inside the 7-Eleven store and asked the manager for a

copy of the receipt for the gas purchase on pump number eleven so he could “see which credit

card they used and to whom that credit card belonged.” He stated he learned the credit card used

for the gas purchase belonged to Davis. He testified he was not able to get the store’s video

surveillance footage at that time because the clerk at the 7-Eleven “did not know how to work

the system.” Burson stated he later returned to the store and obtained copies of the video

surveillance footage. He testified State’s Exhibits 3 and 4 “fairly and accurately” depict what he

saw happen at the 7-Eleven.

At that point, State’s Exhibits 3 and 4 were published for the jury. Neither recording

contained audio. Burson testified (1) State’s Exhibit 3 showed appellant making a cash purchase

inside the 7-Eleven store at approximately 12:10 p.m. on the date in question and (2) State’s

Exhibit 4 showed the suspect vehicle and the two vehicles Burson had seen “meet up” with the

suspect vehicle receiving gas from pump number eleven at approximately 12:14 p.m. on the

same date. According to Burson, the first vehicle to receive gas was a gray Ford Taurus. Burson

stated (1) a woman exited the Taurus at pump number eleven, swiped a credit card at the pump,

and began pumping gas into the Taurus and (2) another person exited the Taurus and pumped gas

from the same pump into the second car and the suspect vehicle.

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 On cross-examination, Burson stated appellant did not use a credit card inside the store.

Further, Burson testified he did not see appellant (1) give anything to the woman in the Taurus or

(2) “personally input a credit card into any gas pump.”

Then, the State recalled Chevallier as a witness. Chevallier testified that upon arriving at

the 7-Eleven store on the date in question, the suspect vehicle did not go directly to the gas

pumps, but rather parked outside the store first. Chevallier stated he saw appellant and

Lockridge (1) talk with the occupants of a silver Taurus and (2) get into the Taurus for a short

time while it was parked outside the 7-Eleven. According to Chevallier, the vehicles described

above then moved to gas pump number eleven and appellant stood near the pump during the

entire time the vehicles were being filled with gas.

Demontric Lockridge testified he has known appellant for several years. Lockridge

stated that on the date in question, he was in possession of the suspect vehicle and he and

appellant decided to commit a burglary. According to Lockridge, appellant drove the suspect

vehicle and selected the Strait Lane neighborhood. Lockridge rode in the passenger seat.

Lockridge stated that after they got to Strait Lane and “found the house,” they “knocked at the

door and the door was open.” Lockridge testified both he and appellant entered the house. He

stated they took “[j]ust a purse that was sitting on a little ol’ stool.” Then, he stated, they went to

a 7-Eleven on Skillman “[t]o purchase some stuff and sell some gas.” Lockridge testified selling

gas involves collecting cash from buyers for gas purchased with a credit card. He stated the

buyers receive “discounts” from the retail price of the gas. According to Lockridge, he and

appellant filled up two or three vehicles with gas at the 7-Eleven and planned to split the

proceeds equally. Lockridge stated he was not charged with any crime in this case. He testified

he has been convicted of numerous other crimes and is currently serving a 15-year sentence in

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the penitentiary. On cross-examination, Lockridge testified he and appellant committed only one

burglary together and that burglary was not in Dallas County, but rather was in Denton County.

Officer Jay Lopez of the Dallas Police Department testified that on August 16, 2011, he

and his partner were on routine patrol and saw a car with an expired vehicle registration near

Kiest and Lancaster in Dallas. Lopez and his partner decided to “do a traffic stop.” According

to Lopez, after they “lit him up,” the car turned west onto Oakland. Lopez testified that at that

point, he saw the person in the front passenger seat of car “reach his hand outside the window

and drop some items onto the ground.” Lopez stated the car continued “rolling” for about ten or

fifteen feet, then came to a stop. According to Lopez, the passenger who dropped the items from

the car was appellant.

Lopez testified that after he and his partner identified the occupants of the car, he went to

the spot where he had seen the items being dropped and found “a bunch of credit cards and a

Texas driver’s license.” Lopez identified State’s Exhibit 9 as the property he found on the

ground. State’s Exhibit 9 consisted of a driver’s license for “Cathy Davis,” nine credit cards in

Davis’s name, and an insurance card in the name of “William Davis.” Lopez stated appellant

was not arrested at that time.

The charge of the court stated in part “a person commits the offense of burglary of a

habitation if, without the effective consent of the owner, he intentionally or knowingly . . . enters

a habitation and commits or attempts to commit theft.” Additionally, the charge stated in part (1)

“[a] person is criminally responsible as a party to an offense if the offense is committed by his

own conduct, by the conduct of another for which he is criminally responsible, or by both” and

(2) “[a] person is criminally responsible for an offense committed by the conduct of another if,

acting with the intent to promote or assist the commission of the offense, he solicits, encourages,

directs, aids or attempts to aid the other person to commit the offense.”

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 During closing, defense counsel argued in part, “And what you must do before you find

the defendant guilty, you must believe beyond a reasonable doubt that the evidence that they

have brought you proves that [appellant], either himself or as a party, entered that house on Strait

Lane; Ms. Cathy Davis’ house.” Additionally, defense counsel (1) asked the jury to “look at the

details” of the GPS tracking report and (2) argued that the tracking report showed the suspect

vehicle “was not on Strait Lane until after 11 o’clock.”

The jury found appellant guilty and assessed punishment as described above. Appellant

filed a motion for new trial, which was overruled by the trial court. This appeal timely followed.

II. JURY CHARGE ERROR

A. Standard of Review

Appellate review of alleged jury charge error generally involves a two-step process. See

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State, 175 S.W.3d 738, 744

(Tex. Crim. App. 2005); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). First,

we must determine whether error occurred. See Wooten v. State, 400 S.W.3d 601, 606 (Tex.

Crim. App. 2013). If there is error in the charge, we must then analyze whether sufficient harm

resulted from the error to require reversal. Id. Under this second step, the degree of harm

necessary for reversal generally depends on whether the appellant properly preserved the error

by objection. See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); Middleton v.

State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).

If the appellant did not object, we will reverse only if there is “egregious harm.” Reeves,

420 S.W.3d at 816; Ngo, 175 S.W.3d at 743–44. Errors that meet the “high and difficult

standard” of causing egregious harm are those that “affect the very basis of the case, deprive the

defendant of a valuable right, or vitally affect a defensive theory.” Ngo, 175 S.W.3d at 750

(quotations omitted); accord Reeves, 420 S.W.3d at 816; see also TEX. CODE CRIM. PROC. ANN.

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art. 36.19 (West 2006). This standard requires the reviewing court to find that the appellant

suffered some actual, rather than merely theoretical, harm from the error. See Reeves, 420

S.W.3d at 816. We consider “the entire jury charge, the state of the evidence, including the

contested issues and weight of probative evidence, the argument of counsel and any other

relevant information revealed by the record of the trial as a whole.” Barron v. State, 353 S.W.3d

879, 883 (Tex. Crim. App. 2011) (quoting Almanza, 686 S.W.2d at 171). In analyzing harm

from a jury charge error, neither the State nor the defense has a burden to show harm. Reeves,

420 S.W.3d at 816.

B. Applicable Law

The Texas Penal Code provides in part that a person commits burglary of a habitation if,

without the effective consent of the owner, he enters a habitation and commits theft. See TEX.

PENAL CODE ANN. § 30.02(a) (West 2011). A person commits theft if he unlawfully

appropriates property with intent to deprive the owner of the property. Id. § 31.03(a). Further,

pursuant to the penal code, a person is criminally responsible as a party to an offense “if the

offense is committed by his own conduct, by the conduct of another for which he is criminally

responsible, or by both.” See id. § 7.01(a). A person is criminally responsible for the conduct of

another if, acting “with intent to promote or assist the commission of the offense,” he “solicits,

encourages, directs, aids, or attempts to aid the other person to commit the offense.” Id. § 7.02.

Article 38.14 of the Texas Code of Criminal Procedure provides “[a] conviction cannot

be had upon the testimony of an accomplice unless corroborated by other evidence tending to

connect the defendant with the offense committed; and the corroboration is not sufficient if it

merely shows the commission of the offense.” TEX. CODE CRIM. PROC. ANN. art. 38.14 (West

2005); see Zamora v. State, 411 S.W.3d 504, 509 (Tex. Crim. App. 2013); see also Druery v.

State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (“This accomplice witness rule creates a

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statutorily imposed review and is not derived from federal or state constitutional principles that

define the legal and factual sufficiency standards.”). To satisfy article 38.14, “‘the evidence

must simply link the accused in some way to the commission of the crime and show that rational

jurors could conclude that this evidence sufficiently tended to connect [the accused] to the

offense.’” Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009) (quoting Malone v.

State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008)).

To meet the requirements of article 38.14, the corroborating evidence “need not prove the

defendant’s guilt beyond a reasonable doubt by itself.” Malone, 253 S.W.3d at 257. “Nor must

the non-accomplice evidence directly link the accused to the commission of the offense.”

Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Further, “circumstances that are

apparently insignificant may constitute sufficient evidence of corroboration.” Malone, 253

S.W.2d at 257. While a defendant’s mere presence at the crime scene is insufficient to

corroborate accomplice testimony, “‘[p]roof that the accused was at or near the scene of the

crime at or about the time of its commission, when coupled with other suspicious circumstances,

may tend to connect the accused to the crime so as to furnish sufficient corroboration to support

a conviction.’” Id. (quoting Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)).

The trial court has a duty to sua sponte instruct the jury on accomplice-witness testimony

when the evidence raises the issue. See Zamora, 411 S.W.3d at 512–13 & 512 n.4. A witness is

an accomplice as a matter of law when the witness has been charged with the same offense as the

defendant or a lesser-included offense or “when the evidence clearly shows that the witness

could have been so charged.” Id. at 510. “Under the egregious harm standard, the omission of

an accomplice witness instruction is generally harmless unless the corroborating (non-

accomplice) evidence is ‘so unconvincing in fact as to render the State’s overall case for

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conviction clearly and significantly less persuasive.’” Herron v. State, 86 S.W.3d 621, 632 (Tex.

Crim. App. 2002).

C. Application of Law to Facts

In his first issue, appellant contends the trial court’s failure to include an instruction in the

jury charge requiring the corroboration of accomplice testimony was “egregious error.” 2

Specifically, appellant argues (1) “Lockridge, the accomplice in the burglary of Davis’s home,

testified as a State’s witness”; (2) “without a proper jury instruction, the jury did not know that

Lockridge’s testimony must be corroborated before it could convict Appellant of the charged

offense”; and (3) “Lockridge’s testimony was the only evidence that placed Appellant inside

Davis’s home, an essential element of the charged offense.” Further, according to appellant, “the

failure to include this important instruction in the jury charged denied Appellant his right to a fair

trial” because “[w]ithout the accomplice witness instruction, there was no safeguard to ensure

that the jury did not convict Appellant on Lockridge’s testimony alone.”

The State responds in part that any such error “could not have created any unfairness”

and therefore did not egregiously harm appellant. The State argues that the evidence

affirmatively corroborating Lockridge’s account included (1) the presence of the suspect vehicle,

occupied by appellant and another male, near the site of the burglary at the time of the burglary,

(2) appellant’s “quick use of the stolen credit card to purchase gasoline for multiple vehicles at a

nearby filling station,” and (3) appellant’s possession of items belonging to Davis on the

following day and his attempt to conceal that property as he was being stopped by a police

officer.

The record shows law enforcement officers testified (1) they saw the suspect vehicle in

the area near Strait Lane at approximately the time of the burglary of Davis’s home and (2)

2
Appellant acknowledges in his brief in this Court that he did not object to the charge.

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appellant was driving the suspect vehicle and was accompanied by a male passenger.

Additionally, the record shows (1) shortly thereafter, a credit card belonging to Davis was used

to purchase gas for several vehicles at a 7-Eleven store; (2) appellant spoke with the occupants of

one of those vehicles at the 7-Eleven prior to the gas purchase, briefly got inside that vehicle, and

stood near the pump from which the vehicles were receiving gas; and (3) on the following day,

appellant dropped items from the window of a vehicle as it was stopped by police and the items

found on the ground at that spot included Davis’s credit cards and driver’s license.

On this record, we conclude rational jurors could have found that the non-accomplice

evidence described above “tended to connect the accused” to commission of the offense in

question. See Malone, 253 S.W.2d at 257; Simmons, 282 S.W.3d at 508. Further, we conclude

such non-accomplice evidence is not “so unconvincing in fact as to render the State’s overall

case for conviction clearly and significantly less persuasive.” Herron, 86 S.W.3d at 632.

Therefore, we conclude appellant was not egregiously harmed by any error by the trial court in

not including a jury instruction respecting corroboration of accomplice testimony. See id.

We decide against appellant on his first issue.

III. APPELLANT’S EVIDENTIARY COMPLAINTS

A. Standard of Review

We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. See, e.g., Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007);

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). The trial court’s ruling will

be upheld if it is within the zone of reasonable disagreement and is correct under any theory of

law applicable to the case. Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008);

Winegarner, 235 S.W.3d at 790.

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 B. Analysis

1. Surveillance Videos

In his second issue, appellant contends the trial court erred by admitting into evidence the

video recordings designated as State’s Exhibit 3 and State’s Exhibit 4 because “the proper

predicate had not been established” at the time those video recordings were admitted into

evidence. Specifically, appellant asserts (1) the video recordings in question were admitted into

evidence at the conclusion of Gelan’s direct examination and (2) “Gelan did not testify that the

videotapes accurately represented the events of August 15, 2011, at his store.”

The State responds in part that the video recordings were properly admitted because (1)

Gelan “identified them as part of the records of his business that he personally obtained for law

enforcement” and (2) “the videos were effectively identified as a valid depiction of the activities

at the 7-Eleven by Officers Chevallier and Burson.”

“A bedrock condition of admissibility of evidence in any legal contest is its relevance to

an issue in the case—that is to say, its tendency to make a fact of consequence to determination

of the action more or less probable.” Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App.

2012). “Evidence has no relevance if it is not authentically what its proponent claims it to be.”

Id. As stated by the Texas Court of Criminal Appeals, rule 901(a) of the Texas Rules of

Evidence “defines authentication as a ‘condition precedent’ to admissibility of evidence that

requires the proponent to make a threshold showing that would be ‘sufficient to support a finding

that the matter in question is what its proponent claims.’” Id. (citing TEX. R. EVID. 901(a)).

Evidence may be authenticated in a number of ways, including by direct testimony from a

witness with personal knowledge. Id.; see TEX. R. EVID. 901(b)(1) (testimony by a “witness with

knowledge” that “a matter is what it is claimed to be” can satisfy authentication requirement of

rule 901). For example, a witness who observed the events depicted in a video recording may

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lay the predicate respecting that video by testifying the video is an accurate representation of the

object or scene in question. See Standmire v. State, No. 10-13-00282-CR, 2014 WL 3882940, at

*6 (Tex. App.—Waco Aug. 7, 2014, pet. ref’d); see also Huffman v. State, 746 S.W.2d 212, 222

(Tex. Crim. App. 1988). “The trial judge does not abuse his or her discretion in admitting

evidence where he or she reasonably believes that a reasonable juror could find that the evidence

has been authenticated or identified.” Druery, 225 S.W.3d at 502. Further, “[e]vidence

prematurely admitted in error may become admissible or be rendered harmless by subsequent

evidence.” James v. State, 102 S.W.3d 162, 175 (Tex. App.—Fort Worth 2003, pet. ref’d);

accord Davis v. State 687 S.W.2d 78, 82 (Tex. App.—Dallas 1985, pet. ref’d) (any error in

admitting photograph into evidence without proper authentication was “cured” when witness

later testified she was present when photograph was taken); Romo v. State, 700 S.W.2d 633, 634

(Tex. App.—Houston [14th Dist.] 1985, no pet.) (“A conviction will not be reversed for error in

receiving evidence that was not admissible when received but which became admissible at a

subsequent stage.”).

In the case before us, even assuming without deciding that Gelan’s testimony did not

constitute proper authentication as to State’s Exhibits 3 and 4, the record shows that subsequent

to the admission of those exhibits into evidence, Burson testified those exhibits “fairly and

accurately” depicted what he saw happen at the 7-Eleven. Therefore, on this record, we

conclude the trial court’s admission of State’s Exhibits 3 and 4 into evidence did not constitute

reversible error. See Davis, 687 S.W.2d at 82; James, 102 S.W.3d at 175; Romo, 700 S.W.2d at

634; see also Standmire, 2014 WL 3882940, at *6.

2. GPS Evidence

a. GPS Tracking Report

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 Next, we address appellant’s fourth issue, in which he asserts the trial court abused its

discretion by admitting State’s Exhibit 1, the GPS tracking report, into evidence because (1) the

report constitutes hearsay and (2) even if the report is not hearsay, the record does not

“demonstrate the accuracy of the process that generated the report.”

Texas case law “makes it clear that a statement of ‘no objection’ when the complained-of

evidence is eventually proffered at trial—at least, without more—will signal to the trial court an

unambiguous intent to abandon the claim of error that was earlier preserved for appeal.” Thomas

v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013). “[A]s with error preservation in general,

the rule that a later statement of ‘no objection’ will forfeit earlier-preserved error is context-

dependent.” Id. “By that we mean that an appellate court should not focus exclusively on the

statement itself, in isolation, but should consider it in the context of the entirety of the record.”

Id. “If the record as a whole plainly demonstrates that the defendant did not intend, nor did the

trial court construe, his ‘no objection’ statement to constitute an abandonment of a claim of error

that he had earlier preserved for appeal, then the appellate court should not regard the claim as

‘waived,’ but should resolve it on the merits.” Id. “On the other hand, if from the record as a

whole the appellate court simply cannot tell whether an abandonment was intended or

understood, then, consistent with prior case law, it should regard the ‘no objection’ statement to

be a waiver of the earlier-preserved error.” Id. “Under the latter circumstances, the affirmative

‘no objection’ statement will, by itself, serve as an unequivocal indication that a waiver was both

intended and understood.” Id. at 885–86.

As to appellant’s complaint respecting “accuracy of the process that generated the

report,” the record does not show that complaint was asserted in the trial court. Therefore, that

complaint presents nothing for this Court’s review. See TEX. R. APP. P. 33.1(a)(1) (to preserve

complaint for appellate review, defendant must make timely and specific objection in trial court);

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see also Bekendam v. State, 441 S.W.3d 295, 299–300 (Tex. Crim. App. 2014) (complaint on

appeal must comport with objection made at trial); Crouse v. State, 441 S.W.3d 508, 516 (Tex.

App.—Dallas 2014, no pet.) (same).

Further, the record shows defense counsel objected to State’s Exhibit 1 during the pretrial

hearing outside the jury’s presence on the grounds that (1) the exhibit is hearsay and (2) the State

had offered no expert testimony as to the “reliability and credibility” of the GPS device.

However, (1) when State’s Exhibit 1 was offered into evidence before the jury during trial,

defense counsel stated, “No objection”; (2) subsequently, during cross-examination of

Chevallier, defense counsel asked questions based on the data in that exhibit; and (3) during

closing argument, defense counsel urged the jury that the “details” of that exhibit should be

considered by them in support of appellant’s argument.

Our review of the entire record reveals nothing contradicting appellant’s apparent

intention to fully relinquish his challenge to State’s Exhibit 1. Because defense counsel

specifically stated that he had no objection to the admission of the evidence in question and the

record does not plainly indicate an intention not to abandon the previous claim of error, we

conclude appellant’s complaint respecting the inadmissibility of the tracking report has not been

preserved for appellate review. See Thomas, 408 S.W.3d 877, 885–86; Harper v. State, 443

S.W.3d 496, 498–99 (Tex. App.—Texarkana 2014, no pet.).

We decide appellant’s fourth issue against him.

b. Testimony of Chevallier

In his third issue, appellant contends “[t]he trial court abused its discretion when it

permitted a police officer to testify about GPS evidence because the State did not satisfy the

proper predicate.” Specifically, appellant contends Chevallier’s testimony respecting use of a

“GPS tracker” device is “scientific evidence” and the State thus had the burden to establish the

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reliability of that evidence. According to appellant, the State did not do so and the evidence in

question was therefore inadmissible. Further, appellant contends the evidence in question was

“critical to the State’s case” because “[a]lthough Chevallier testified that he and other officers

followed the suspect vehicle with the tracker device, none of the officers who followed the car

observed Appellant or the suspect vehicle near Davis’s home on the offense date.”

The State responds in part that there was “no need for the State to provide proof of the

scientific theory upon which the GPS tracking device relied or of its precision or accuracy”

because “Chevallier’s testimony was merely offered to explain how the police came to observe

[appellant’s] vehicle in the vicinity of the Davis residence near the time of the burglary or as

proof of a circumstantial fact.”

Texas Rule of Evidence 702 provides, “If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise.” TEX. R. EVID. 702. “When the subject of an

expert’s testimony is ‘scientific knowledge,’ then the basis of that testimony must be grounded in

the accepted methods and procedures of science.” Morris v. State, 361 S.W.3d 649, 654 (Tex.

Crim. App. 2011). “For expert testimony based upon ‘hard’ science, we employ the Kelly test

for reliability: (1) the underlying scientific theory must be valid, (2) the technique applying the

theory must be valid, and (3) the technique must have been properly applied on the occasion in

question.” Id. (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)).

“It is only when the fact-finder may not fully understand the evidence or be able to

determine the fact in issue without the assistance of someone with specialized knowledge that a

witness must be qualified as an expert.” Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App.

2002). If a witness is not testifying as an expert, “the witness’ testimony in the form of opinions

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or inferences is limited to those opinions or inferences which are (a) rationally based on the

perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.” TEX. R. EVID. 701.

In the case before us, Chevallier testified he used the “GPS tracker” device to view the

location of the suspect vehicle on a map on a laptop computer while at the same time riding in a

vehicle that was following the suspect vehicle. Chevallier stated he saw the suspect vehicle enter

and exit the neighborhood around Strait Lane near the time of the burglary in question.

Additionally, (1) Perritt testified he saw the suspect vehicle entering Strait Lane and (2) both

Adams and Perritt testified appellant was the driver of the suspect vehicle. Chevallier’s

testimony in question merely described the “GPS tracker” device as one of several methods

being used by law enforcement officers to determine the location of the suspect vehicle. On this

record, we conclude Chevallier’s testimony in question was not scientific evidence. See Morris,

361 S.W.3d at 655 n.28; cf. Ewing v. State, No. 06-13-00089-CR, 2013 WL 5948108, at *5–6

(Tex. App.—Texarkana Nov. 5, 2013, no pet.) (mem. op., not designated for publication) (GPS

testimony offered to show how police officers established location of stolen truck was not

scientific evidence for which scientific foundation was required). Therefore, no scientific

foundation was necessary. See Osbourn, 92 S.W.3d at 537.

We decide appellant’s third issue against him.

IV. CONCLUSION

We decide against appellant on his four issues. The trial court’s judgment is affirmed.

/ Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
130674F.U05
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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

ROLAND LASHUN JERNIGAN, Appellant On Appeal from the 195th Judicial District
Court, Dallas County, Texas
No. 05-13-00674-CR V. Trial Court Cause No. F-11-59314-N.
Opinion delivered by Justice Lang, Justices
THE STATE OF TEXAS, Appellee Bridges and Evans participating.

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

Judgment entered this 16th day of December, 2014.

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