In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00006-CR ______________________________
JOSEPH S. BONNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 95F0245-202
Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross
O P I N I O N
Joseph S. Bonner appeals the revocation of his community supervision in each of four cases. In 1988, Bonner pled guilty to felony driving while intoxicated (DWI). The trial court sentenced him to five years' imprisonment, but suspended the imposition of his sentence and placed him on five years' community supervision. In 1992, Bonner was indicted for two other felony DWI offenses. The State also filed a motion to revoke Bonner's community supervision for the 1988 conviction. The trial court did not hear these cases until 1995, when Bonner was indicted for a fourth felony DWI offense.
Bonner pled guilty to the two 1992 felony DWI offenses and to the 1995 felony DWI offense. The trial court sentenced him to five years' imprisonment for each offense. The trial court also revoked Bonner's community supervision in the 1988 conviction and sentenced him to five years' imprisonment. All sentences were ordered to run concurrently. However, five months later, the trial court placed Bonner on five years' "shock probation" in each case.
In 2000, the State again moved to revoke Bonner's community supervision, alleging he committed five violations of its terms. Specifically, the State alleged (1) that Bonner operated a vehicle without an ignition interlock device installed on the vehicle, (2) that he failed to report to the community supervision department as directed, (3) that he failed to pay his supervision fees for five months, (4) that he consumed alcohol, and (5) that he failed to report to a supervision officer and take Anabuse over a ten-day period. (1)
Bonner pled true to two of the State's allegations. The trial court found three of the allegations true, revoked Bonner's community supervision in all four cases, and ordered the execution of the remainder of his sentences.
This opinion addresses the revocation of Bonner's community supervision for the 1995 felony DWI offense, trial cause number 95F0245-202, for which he was convicted in 1995. Bonner has also appealed the revocation of his community supervision in each of the other cases. We address those appeals in separate opinions.
The record shows Bonner was arrested for DWI on April 15, 2000. Officer Joe Rochelle testified he encountered Bonner's vehicle around 10:30 p.m. He testified the car was traveling "halfway on the road and halfway off the road." He turned and followed for "several moments" and saw the car "weav[e] back and forth" and move "over on top of the white fog line several times, almost off the road several times . . . ."
Rochelle testified Bonner "staggered as he walked towards" Rochelle after exiting his vehicle. He also noticed an odor of an alcoholic beverage on Bonner's breath and that his eyes were "glassy and bloodshot." Rochelle testified Bonner admitted he had been drinking.
Rochelle administered field sobriety tests, including the horizontal gaze nystagmus (HGN), the one-legged stand, and the heel-to-toe walk. Rochelle testified that, based on those tests, he concluded Bonner was intoxicated. A videotape of the field sobriety test was introduced into evidence at trial.
Bonner did not dispute he told Rochelle he had "a couple of beers" that night, but testified they were nonalcoholic beers. He testified he failed to report to his community supervision officer as directed on the date alleged in the State's motion to revoke his community supervision. He also admitted the truck he was driving was not equipped with an ignition interlock device. He further admitted he was aware he was required to take Anabuse on the dates alleged in the State's motion to revoke his community supervision, but failed to take the Anabuse on those dates.
Bonner first contends the trial court erred in admitting the videotape, which was an edited copy of the original, when the original videotape was available. Rochelle testified (1) that he recognized the videotape as the video taken during the traffic stop and the interview; (2) that he listened to and watched the videotape; (3) that it was recorded on a device capable of making an accurate recording; (4) that the device was operated by an individual who is competent to operate the equipment; (5) that the videotape is an accurate copy of the conversations that took place; (6) that the pictures contained on the videotape are fair and accurate representations of the events that took place; (7) that he is able to identify all the voices on the videotape; and (8) that it had not been altered in any manner.
Bonner then asked Rochelle the following on voir dire:
Q. Officer Rochelle, is this the original?
A. No, sir. It's a copy.
Q. Where's the original?
A. The original's out in my car.
Q. Okay. Why is the original not being produced?
A. Because in situations like this, we make a copy and give [it] to the [district attorney's] office and we keep the original in our locker, locked up.
[Defense Counsel]: Objection, Your Honor. Not the best evidence.
The prosecutor then asked whether the videotape was an exact copy of the original. Rochelle responded it was. The trial court overruled Bonner's objection. Bonner further questioned Rochelle on voir dire but made no additional objections. The videotape was admitted into evidence and published to the court.
Later, on cross-examination, Rochelle testified Bonner did not tell him the truck Bonner was driving veered because it was having mechanical problems. Bonner then asked:
Q. Well, are any of those conversations on tape?
A. The whole traffic stop itself, from the point where I initiated my turning on my lights to my pulling into the Bi-State [Justice Building] . . . is on the original tape.
Q. Okay. But it's not on this tape?
A. No, sir.
[Defense Counsel]: Once again, Your Honor, then we renew our objection to the admissibility of State's Exhibit Two since obviously it's been edited, it's been altered, and it's not complete.
. . . .
THE COURT: Alright. I am going to overrule that objection . . . because I think it was admitted only to that portion that we saw. And if there's some additional part and there's a desire to admit it on the part of the State or the defendant, certainly we'll entertain that.
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 122 S. Ct. 127, 151 L. Ed. 2d 82 (2001). To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided by the Texas Rules of Evidence or by other law. Tex. R. Evid. 1002.
However, a duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Tex. R. Evid. 1003. A duplicate is a counterpart produced, among other ways, by mechanical or electronic re-recording. Tex. R. Evid. 1001(d).
Rule 901 governs the authentication of recordings. Angleton v. State, 971 S.W.2d 65, 69 (Tex. Crim. App. 1998). Under Rule 901(a), the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Tex. R. Evid. 901(a). For instance, testimony of a witness with knowledge that a matter is what it is claimed to be can be sufficient to authenticate evidence. Tex. R. Evid. 901(b)(1). Also, identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based on hearing the voice at any time under circumstances connecting it with the alleged speaker, can also be sufficient to authenticate evidence. Tex. R. Evid. 901(b)(5).
In the present case, Bonner did not object to the authenticity of the videotape before its introduction into evidence; rather, he objected merely that it was a copy and not the original. Therefore, any issue regarding its authenticity is waived. Tex. R. App. P. 33.1.
Further, his second objection to the videotape was not an objection to the authenticity of the original, which under Rule 1003 is one way to challenge the admissibility of a duplicate. Tex. R. Evid. 1003. Even if Bonner had raised an objection to the authenticity of the videotape, Rochelle's testimony is sufficient to establish its authenticity. Rochelle testified that he was the person who made the videotape, that he reviewed it, that he was able to identify the voices on the videotape, that it was a fair and accurate representation of the events and conversations, and that it was an exact copy of the original.
Though on cross-examination after the videotape had been published to the trial court, Bonner established there were matters on the original videotape not contained on the copy, this fact does not affect the videotape's admissibility. Bonner does not allege the portions shown to the trial court were not accurate representations of those portions of his encounter with Rochelle. Rather, he maintains those portions did not show the complete encounter.
When a party introduces a writing or recorded statement, or a part of a writing or recorded statement, an adverse party may at that time introduce any other part or any other writing or recorded statement that should, in fairness, be considered contemporaneously with it. Tex. R. Evid. 106. In the present case, the trial court offered Bonner the opportunity to introduce the missing portions of the original videotape, but Bonner declined.
Nevertheless, even if the trial court erred in admitting the videotape, the error was harmless. Nonconstitutional error is harmless when it does not affect the defendant's substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Reversal is not required if, after reviewing the record as a whole, the appellate court has a fair assurance the error did not influence the jury's verdict or had only a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
In the present case, the trial court found the allegation Bonner failed to abstain from alcohol not true. Therefore, the videotape, which revealed evidence of Bonner's intoxication and his admission to drinking that night, did not serve as the basis for the revocation of his community supervision. Even if it had, the videotape was largely cumulative of Rochelle's testimony that Bonner appeared intoxicated and that Bonner admitted having "a couple of beers" that night.
Further, the issue in this case was the revocation of Bonner's community supervision. The decision to revoke community supervision is within the trial court's discretion. Wester v. State, 542 S.W.2d 403, 405 (Tex. Crim. App. 1976); Allen v. State, 946 S.W.2d 115, 116 (Tex. App.Texarkana 1997, no pet.). We review the trial court's ruling for abuse of discretion. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983); Lopez v. State, 46 S.W.3d 476, 482 (Tex. App.-Fort Worth 2001, pet. ref'd).
The trial court cannot revoke community supervision without a showing the defendant violated a condition of community supervision. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987); Allen, 946 S.W.2d at 116. When there is sufficient evidence to support a finding the defendant violated a condition of supervision, the trial court does not abuse its discretion by revoking community supervision. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984); Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.-Texarkana 1995, pet. ref'd). Proof of a single violation is sufficient to support revocation of community supervision. O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981); Myers v. State, 780 S.W.2d 441, 445 (Tex. App.Texarkana 1989, pet. ref'd).
Bonner admitted he drove a vehicle that was not equipped with an ignition interlock device and admitted he failed to report to the community supervision department as directed. In fact, Bonner pled true to these allegations. Therefore, the trial court did not abuse its discretion in revoking his community supervision, even if it did err in admitting the videotape.
Bonner also contends he was not required to take Anabuse on the days he was alleged to have failed to take it. The basis of his contention is his belief that, in the 1995 order placing him on "shock probation," he was only ordered to take Anabuse for one year. However, the order in question required him to take Anabuse daily.
Nevertheless, the record shows the trial court modified the terms of his community supervision in 1999, requiring him to "report daily to his probation officer . . . to take Anabuse for a period of one year." The record also shows the State alleged Bonner failed to take Anabuse on dates within one year of the modified order. Further, Bonner admitted he was aware of the requirement that he take Anabuse daily, and the record shows he appeared regularly at the community supervision office to take Anabuse except on the days alleged in the State's motion to revoke his community supervision.
In any event, any error is harmless, as Bonner admitted he drove a vehicle not equipped with an ignition interlock device and admitted he failed to report to the community supervision department as directed. As mentioned previously, proof of these violations is a sufficient basis, in and of itself, for the trial court to revoke Bonner's community supervision.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: March 12, 2002
Date Decided: March 19, 2002
Do Not Publish
1. Anabuse is a drug that causes violent naseau and vomiting if the person ingests alcohol.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00175-CR
______________________________
JOHNNY EDWARDS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 3rd Judicial District Court
Anderson County, Texas
Trial Court No. 29656
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Johnny Edwards, an inmate in the Texas Department of Corrections, appeals from his conviction by a jury for assault of a public servant.[1] The jury found alleged enhancements true, and assessed his punishment at seventy-five years imprisonment, to run consecutive to the conviction he is presently serving.
Edwards attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
Counsel mailed a copy of the brief and a letter to Edwards on January 21, 2011, informing Edwards of his right to file a pro se response and of his right to review the record. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal.
Edwards filed a pro se response on April 21, 2011. In his sixty-two-page missive, he complains about perceived inequities, improprieties in his prior convictions and their use as enhancements, about the way that the Texas Department of Criminal Justice handles inmates and their complaints, the use of force against him, alleged incompetence by his trial counsel, and a plethora of other matters.
We have determined that this appeal is wholly frivolous. We have independently reviewed the clerks record and the reporters record, and find no genuinely arguable issue. See Halbert v. Michigan, 545 U.S. 605, 623 (2005). We, therefore, agree with counsels assessment that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 82627 (Tex. Crim. App. 2005).
We affirm the judgment of the trial court.[2]
Jack Carter
Justice
Date Submitted: May 12, 2011
Date Decided: May 19, 2011
Do Not Publish
[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Govt Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsels request to withdraw from further representation of appellant in this case. No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.