dissenting.
I agree with the majority that there are problems with this Court’s opinion in Kep-hart. But having disavowed that opinion, we ought to remand this case to the Court of Appeals to reconsider the authenticity of the evidence.
Rule of Criminal Evidence 901 provides in part:
(a) General Provision. 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.
Rule 901 also sets forth a number of “examples” “by way of illustration only, and not by way of limitation!,]” as to how a piece of evidence might be authenticated, including the following:
(1) Testimony of Witness with Knowledge. Testimony that a matter is what it is claimed to be.
In Kephart we transformed this single “example” into a “requirement” for authenticating a video tape recording. This error derived from the fact such a requirement existed under pre-Rules caselaw and the Court mistakenly concluded that Rule 901 is consistent with pre-Rules caselaw:
... it is clear that our pre-rules caselaw regarding authentication of video tapes required that either the [seven pronged] Edwards test be satisfied or a sponsoring witness have knowledge of the scene depicted. [citations omitted] Keeping these principles in mind we hold that Rule 901 is consistent with our pre-Rules interpretations requiring authentication of video tapes.
Kephart, 875 S.W.2d at 322. Thus, we held the State failed to authenticate the tape because the testifying officer “did not know when the.tape had been made ... had no personal knowledge of where or when the tape had been made, [and] could not [ ] state that the tape accurately represented the actual scene or event at the time it occurred.” Id. at 322-23.
Following Kephart, the Court of Appeals held Rule 901 “requires'the sponsoring witness to have knowledge that the evidence is what its proponent says it is.” Angleton v. State, 955 S.W.2d 655, 659 (Tex.App.1997) (emphasis added). Thus, the court concluded the tape was not properly authenticated because the sponsoring witness “admitted” it was not the original, was unable to provide “any information as to how the offered tape differed from the original recording other than it had been ‘enhanced!,]’ ” “admitted he *70did not have personal knowledge of where, how, when or who made the recording^]” and “could neither swear the tape was an accurate recording of the conversation it purported to represent, nor could he testify as to the accuracy of the equipment that made the recording.” The Court held
The State was required to furnish testimony of a witness who could verify the tape was what the State claimed it to be. In the absence of such evidence, we find the State failed to lay the proper predicate for the'court to admit the tape into evidence.
Id. at 659. The two other justices on the panel wrote separately, opining that Kephart wrongly limited Rule 901 by suggesting that a tape recording can only be authenticated by the testimony of one who either made the tape or was a participant.
And they are right. Rule 901 imposes no such requirement; Kephart was wrong to indicate otherwise. This case ought to- be remanded to the Court of Appeals for reconsideration of the issue, sans Kephart — at least part of it.
Not all of Kephart is wrong, however, as that opinion did well to point out that authenticity is, at its heart, a question of relevance.1 Kephart, 875 S.W.2d at 321. This elemental, yet essential notion is explained by commentators Goode, Wellborn and Sharlot:
“Authentication and identification,” according to the drafters of the federal rules, “represent a special aspect of relevancy.” They explain: “Thus a telephone conversation may be irrelevant because on an unrelated topic or because the speaker is not identified....” As the example shows, the problem of authentication of identification is not confined to documentary or real evidence. It arises whenever the relevancy of any evidence depends upon its identity, source, or connection with a particular person, place, thing or event. “The foundation on which the necessity of authentication rests,” wrote Wigmore, “is not any artificial principle of evidence, but an inherent logical necessity.” ...
When real evidence is offered, often its condition as well as its identity is important. When this is so, a proper foundation must include evidence that the item is in substantially the same condition when presented as at the legally material time, e.g., the time of the accident, the time of first discovery, etc_ It is not required, however, that all possibility of tampering or adulteration be eliminated. Moreover, even if a change in the condition of an item has occurred, it is not necessarily thereby rendered inadmissible. So long as the probative value of the item, despite the change, outweighs the danger of misleading the jury, it will still be admissible, and the change in its condition will be a matter going only to its weight as evidence.
2 Steven Goode et al, Texas PRACTICE, Guide to Texas Rules of Evidenoe: Civil and Criminal § 901.1, at 191-92 (2nd ed.1993). Further, the question of the authenticity of a piece of evidence is one of “conditional relevancy” which is subject to a “prima facie case” determination by the trial judge, pursuant to Rule of Criminal Evidence 104(b). Id. at 192-93.
*71I point this out because the majority, despite its 9 page opinion, never mentions relevance; and, it is integral to an understanding of authentication.2 In the instant case, the question boils down to whether the State, as proponent of the audio tape, has authenticated it by establishing its relevance to the case by any number of methods, some of which are described in Rule 901.
The Court of Appeals has reviewed the record and is infinitely more familiar with the facts of this case than this Court is or ought to be at this point. We should remand this case to them to reconsider the trial court’s ruling as to the authenticity of the tape without the constraints imposed under Rule 901 by Kephart and,3 if necessary, assess its weight in connection with the larger question of proof evident.
BAIRD, OVERSTREET and PRICE, JJ., join.
. Thus, despite other flaws in its analysis, as discussed above, Kephart properly concluded the videotape at issue was simply not shown to be relevant. There, the defendant was indicted for possession of cocaine. The State sought to introduce a videotape which showed the defendant and others over what appeared to be the course of an evening. Through-out the tape, the defendant became increasingly under the influence of drugs or alcohol, and is finally shown seated at a table on which there is a white substance and a baggy containing what appeared to be marijuana. There were numerous pauses and breaks in the tape. The defendant objected to the tape as not properly authenticated. We stated that "the video tape’s relevancy was conditioned upon proper authentication because its relevance depended on its connection with Appellant and her alleged involvement with drugs at her home on the night in question." Id. at 322 (emphasis added). The State failed to establish the relevance of the tape because the testifying officer "did not know when the tape had been made ... had no personal knowledge of where or when the tape had been made, [and] could not [ ] state that the tape accurately represented the actual scene or event at the time it occurred." Id. at 322-23. Nothing else showed those critical connecting facts which would render the tape relevant. A tape of the’ defendant on a random night at a random location would have no relevance to the question of whether the defendant possessed drugs on a' particular night at a particular location.
. The majority today decides, and I think rightly, that we ought not continue to insist on application of the Edwards test when no such defined inquiry is required under the plain language of Rule 901. Majority opinion at 8-9. I view it as odd, then, that the majority sets out a "three part" test it says applies in answering the authentication question in this case. Majority opin- ' ion at 5. Has the Edwards test simply been replaced with the Angleton test? Fashioning a restrictive "test” for application of Rule 901 is not necessary in this case or particularly helpful for other cases. Nothing in the Rule itself requires any such inquiry. The overriding inquiry is one of relevance. While the matters included in the majority's "three part” test might enter into such inquiry, a Rule 901 question should not be narrowed to a fixed number of inflexible inquiries.
. The majority says the standard of review "for a trial court’s ruling under one of the rules of evidence is abuse of discretion.” Majority opinion at 5 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)). While I agree this ought to be the standard and I realize there is language in Guzman to this effect, it does not square with the rest of the scheme established in Guzman. In Guzman, the Court held that "application of law to fact questions” that do not turn on an evaluation of credibility and demean- or should be reviewed de novo because "the trial court 'is not in an appreciably better position’ than the appellate court to decide the issue.” Guzman, 955 S.W.2d at 89. The Court also said
Our decision in this case in no way affects this Court’s holdings in cases such as Montgomery. Montgomery sets out the standard by which appellate courts review trial courts' evi-dentiaiy rulings which is an abuse of discretion standard. An appellate court's review of a trial court's evidentiary rulings generally does not involve an "application of law to fact question" or a "mixed question of law and fact."
Id. (emphasis added).
Since appellate review of a trial court’s eviden-tiary rulings does not involve an application of law to fact question, then evidentiary rulings must be either a pure question of law or a pure question of historical fact. See Villarreal v. State, 935 S.W.2d 134, 145 (Tex.Crim.App. 1996)(Kel-ler, J., concurring)(appellate courts generally review two types of questions — questions of law which are reviewed de novo and questions of fact which are reviewed deferentially). Appellate courts need not defer to trial courts as to questions of law and as to pure questions of fact, appellate courts give almost total deference. According to this scheme, evidentiary rulings must be purely questions of fact.
But while questions of evidence necessarily involve historical fact, they also involve rules. Thus, it is most logical to view an evidentiary ruling as a mixed question of law and fact — that is, application of the rule of evidence to the particular piece evidence at issue. According to the scheme set out in Guzman, as a mixed question of law and fact that does not turn largely on weight and credibility, an evidentiary ruling ought to be reviewed de novo. But Guzman says these types of issues should be reviewed deferentially. This all makes for a lot of confusion.
The inconsistency can be logically accounted for, although as is increasingly the case, it is not. Certain application of law to fact questions of constitutional dimension ought to be subject to de novo review because, it might be argued, there is a need for consistency and control in application of the law in these matters. Guzman, 955 S.W.2d at 87 ("the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify the legal principles” quoting Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). There is not the same need with respect to evi-dentiary rulings involving specific pieces of evidence in individual cases.