In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-01-090 CR
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FRED MARSHALL DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
San Jacinto County, Texas
Trial Cause No. 8260
A jury found Fred Marshall Davis guilty of the second degree felony offense of possession of a controlled substance of four grams or more but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.115(a),(d) (Vernon Supp. 2001). After finding Davis to be a repeat offender, the trial court assessed punishment at thirty years of confinement in the Texas Department of Criminal Justice, Institutional Division.
Appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). The brief concludes no error which would arguably support an appeal is presented, a conclusion with which we concur. On June 7, 2001, Davis was given an extension of time in which to file a pro se brief if he so desired. Davis filed a pro se brief that raises five points of error.
Davis first complains of the omission from the jury charge of a definition of the "beyond a reasonable doubt" standard formerly mandated by Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991). The issue was not raised at trial. Failure to include the definition in the charge used to cause reversible error even absent an objection or request at trial. Reyes v. State, 938 S.W.2d 718, 720-21 (Tex. Crim. App. 1996). The point is not arguable because Geesa and Reyes were overruled on this exact point in Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). Davis's argument that former law controls fails because Paulson applies retroactively. See Arroyo v. State, 32 S.W.3d 868 (Tex. Crim. App. 2000). Point of error one is overruled.
Davis's next two points of error contend that State's Exhibit No. 1, a videotape recording that includes his consent to a search of the vehicle, lacks the needed indicia of reliability to be admitted into evidence as proof of consent and that the exclusionary rule required the suppression of the evidence seized without effective consent. A defense expert testified that, seven months after State's Exhibit No. 1 was recorded, he conducted tests on the recording device installed in the arresting officer's vehicle, and concluded that State's Exhibit No. 1 was not recorded on that recording device. Trooper Franklin testified that the recording device was replaced the week after this offense. He had previously testified that State's Exhibit No. 1 was made by the recording equipment in his vehicle on the day of the offense. The authentication requirement is satisfied by evidence from a witness with knowledge that the matter in question is what its proponent claims. Tex. R. Evid. 901. We review the trial court's ruling on an abuse of discretion standard. Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). In this case, Trooper Franklin established how the videotape was made and that it was accurate. Davis's testimony that the videotape did not accurately depict his encounter with Trooper Franklin, most notably at the point where Trooper Franklin asked Davis to step to an area out of sight of the camera, went to the weight of the evidence rather than to its admissibility.
Davis argues that the cocaine should have been suppressed because the videotape recording of his consent to search was inadmissible. Well before the State offered the videotape into evidence, Trooper Franklin had testified without objection that Davis orally consented to the search. Thus, evidence of consent to search was before the jury even if the videotape had been excluded. A consent to search may be oral. Montoya v. State, 744 S.W.2d 15, 25 (Tex. Crim. App. 1987), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996). Although the issue of voluntariness of consent involves a mixed question of law and fact, conflicting testimony regarding whether consent has in fact been given turns on credibility and is resolved by the fact-finder, not by the appellate court. See Cerda v. State, 10 S.W.3d 748, 752 (Tex. App.--Corpus Christi 2000, no pet.). Points of error two and three are overruled.
The final two points of error claim prosecutorial misconduct arising from the State's failure to produce the videocassette recorder actually used to record State's Exhibit No. 1. Davis's claim of prosecutorial misconduct was not raised at trial. The defense apparently learned that the equipment had been replaced when Officer Franklin testified. Obviously, the defendant cannot be expected to file a pre-trial motion regarding a matter of which he has no notice. In this case, however, the issue of prosecutorial misconduct could have been preserved with a motion for new trial, but was not. Tex. R. App. P. 33.1; see Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001). Points of error four and five are overruled.
Having overruled all of appellant's points of error and after reviewing the record and finding no arguable points of error, we affirm the conviction.
AFFIRMED.
PER CURIAM
Submitted on January 4, 2002
Opinion Delivered January 30, 2002
Do Not Publish
Before Walker, C.J., Burgess and Gaultney, JJ.