Opinion issued January 18, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00251-CR
———————————
DANNY RAY MITCHELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Johnson County, Texas1
Trial Court Case No. 22-04101
1
Per the Texas Supreme Court’s docket-equalization powers, this appeal was
transferred from the Tenth Court of Appeals to this court on March 21, 2023. See
TEX. GOV’T CODE § 73.001; Order Regarding Transfer of Cases from Courts of
Appeals, Misc. Docket No. 23-9017 (Tex. Mar. 21, 2023). We are unaware of any
relevant conflict between the Tenth Court’s precedent and ours. See TEX. R. APP.
P. 41.3.
MEMORANDUM OPINION
Danny Ray Mitchell was convicted of speeding in a City of Burleson
municipal court. Proceeding pro se, he appeals his conviction on several grounds.
We affirm the trial court’s judgment.
BACKGROUND
Police officer B. Meugniot pulled Mitchell over for speeding on East Renfro
Street in the City of Burleson. Meugniot’s radar showed Mitchell was driving at a
speed of 57 miles per hour where the posted speed limit, according to Meugniot, was
45 miles per hour. Meugniot issued Mitchell a citation for speeding.
Mitchell contested the citation at a bench trial in municipal court. At trial,
Officer Meugniot testified to the preceding facts. Meugniot testified that driving 57
miles per hour in a 45-mile-per-hour zone was not a reasonable and prudent speed
at that time and in that location. The State also played Meugniot’s dash cam video
of the traffic stop.
On cross-examination, Mitchell repeatedly asked Meugniot whether he was
aware that the speed limit was posted as 45 miles per hour heading eastbound but 50
miles per hour when heading westbound in that area, as Mitchell was when he was
pulled over. Meugniot disagreed and stated that within the Burleson city limits, the
speed limit is 45 miles per hour, although the speed increases outside of the city
limits. Meugniot said he evaluated Mitchell’s speed within the city limits.
2
The trial court did not admit the photos Mitchell offered of what he claimed
were the applicable speed limit signs because Mitchell failed to authenticate the
photos. Mitchell did not offer any other evidence or present any witnesses. The trial
court found Mitchell guilty. Mitchell moved for a new trial, but the trial court denied
the motion.
Mitchell appealed to the county court at law. The county court affirmed the
trial court’s judgment, concluding Mitchell had not preserved error on any of the
issues he raised in his appeal brief. Mitchell then appealed to this court.
DISCUSSION
We first note that Mitchell filed a pro se brief. Although appellate courts
“construe pro se pleadings and briefs liberally, a pro se litigant is still required to
follow the same rules and laws as litigants represented by a licensed attorney.”
Canada v. State, 547 S.W.3d 4, 10–11 (Tex. App.—Austin 2017, no pet.) (quoting
Williams v. State, No. 05-12-01015-CR, 2013 WL 4033640, at *2 (Tex. App.—
Dallas Aug. 7, 2013, pet. ref’d) (mem. op., not designated for publication)).
Mitchell appealed the municipal court’s judgment to the county court at law.
To appeal from a municipal court of record’s judgment, the defendant must file a
motion for new trial setting forth the points of error of which he complains. TEX.
GOV’T CODE § 30.00014(c). The reviewing court, in this case the county court at
law, “sits as an appellate court and considers arguments addressing any errors shown
3
in the municipal court record.” Canada, 547 S.W.3d at 11 (quoting Nelson v. State,
Nos. 12-10-00263-CR & 12-10-00266-CR, 2011 WL 2638738, at *1 (Tex. App.—
Tyler June 30, 2011, no pet.) (mem. op., not designated for publication)).
After the reviewing court considers the appeal, a defendant may seek further
appellate review with a court of appeals under certain circumstances. TEX. GOV’T
CODE § 30.00027(a) (defendant has right to appeal to court of appeals if he was
assessed fine exceeding $100 and reviewing court affirms). The record and briefs
presented to the reviewing court are the record and briefs on appeal to the court of
appeals. Id. § 30.00027(b); Canada, 547 S.W.3d at 11. Although the Government
Code does not specifically address how a court of appeals should review an appeal
from a judgment by a municipal court of record to account for the intervening
appellate determination, the limitations imposed on the record and the briefing
indicate the legislature intended the review by the court of appeals to be a second
appellate review, independent of the determinations made by the first reviewing
court and limited to the same challenges presented to the first reviewing court
regarding the municipal court’s judgment. Canada, 547 S.W.3d at 12.
As we construe Mitchell’s brief, Mitchell has raised seven issues on appeal:
(1) an equal-protection violation because he was not eligible for probation or
defensive driving because he has a commercial driver’s license; (2) a due-process
violation because the prosecutor did not investigate his claim that the posted speed
4
limit was actually 50 miles per hour; (3) a due-process violation because the
prosecutor did not disclose exculpatory evidence; (4) error in the trial court’s ruling
that sustained the State’s objection to his evidence so that he could not admit the
evidence; (5) a due-process violation because he was convicted based on false
testimony; (6) a civil-rights violation because he can no longer drive the posted speed
limit; and (7) a challenge to the sufficiency of the evidence supporting his
conviction.
Preservation of Error
Applicable Law
Generally, to preserve a complaint for appellate review, the record must show
that the defendant made the complaint to the trial court by “timely request, objection,
or motion” stating the grounds for the complaint with “sufficient specificity to make
the trial court aware of the complaint, unless the specific grounds were apparent
from the context.” TEX. R. APP. P. 33.1(a). The record must also show the trial court
ruled or refused to rule on the request, objection, or motion. Id. No “hyper-technical
or formalistic use of words or phrases” is required to preserve a complaint. Clark v.
State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (quoting Pena v. State, 285
S.W.3d 459, 464 (Tex. Crim. App. 2009)). But a party must “let the trial judge know
what he wants, why he thinks he is entitled to it, and to do so clearly enough for the
judge to understand him at a time when the judge is in the proper position to do
5
something about it.” Id. (quoting Pena, 285 S.W.3d at 464). Preserving error is a
“systemic requirement,” and if error has not been preserved, we should not address
the merits of that issue. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
Most complaints, even constitutional errors, can be waived on appeal if not raised in
the trial court. Garza v. State, 435 S.W.3d 258, 260–61 (Tex. Crim. App. 2014).
Analysis
The State asserts Mitchell did not preserve any of his complaints for appeal.
The county court at law agreed with the State and affirmed the municipal court’s
judgment because Mitchell did not preserve error. However, the reporter’s record
and Mitchell’s motion for new trial show he raised several of the issues in the trial
court that he now raises on appeal, even though Mitchell did not make formal
objections: his second issue, a due-process violation because the prosecutor did not
investigate his claim that the posted speed limit was actually 50 miles per hour; his
third issue, a due-process violation because the prosecutor did not disclose
exculpatory evidence; his fourth issue, error in the trial court’s ruling that sustained
the State’s objection to his evidence so that he could not admit the evidence; and his
seventh issue, a challenge to the sufficiency of the evidence supporting his
conviction. The record indicates Mitchell raised these issues before the trial court,
and he thus preserved error for appeal.
6
However, the record does not show that Mitchell raised the following issues
that he now asserts on appeal: his first issue, an equal-protection violation because
he was not eligible for probation or defensive driving because he holds a commercial
driver’s license; his fifth issue, a due-process violation because he was convicted
based on false testimony; and his sixth issue, a civil-rights violation because he can
no longer drive the posted speed limit.
While Mitchell did not preserve error on his first issue, it is worth noting that,
to assert an equal protection claim under the Fourteenth Amendment, a party must
assert: (1) he was treated differently than other similarly situated parties; and (2) he
was treated differently without a reasonable basis. State v. Dinur, 383 S.W.3d 695,
701 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Courts in other states have
found a reasonable basis to treat drivers with commercial licenses differently from
regular drivers for offenses related to driving. See, e.g., Wilson v. State ex rel. Office
of Hearing Exam’r, 841 P.2d 90, 96 (Wyo. 1992) (concluding no equal-protection
violation in subjecting drivers with commercial licenses to different punishment for
driving while intoxicated); Murphy v. Pierce, 1 Cal. App. 4th 690, 696, 2 Cal. Rptr.
2d 18, 21 (1991) (concluding no equal-protection violation in imposing longer
suspension of driver’s license after drunk driving offense for driver with commercial
driver’s license than for driver without).
7
Regarding his fifth issue, while error was not preserved, we note that false
testimony is different from disputed testimony. When testimony is disputed, such as
here where the testifying officer and the defendant gave different versions of the
facts,2 the factfinder must resolve conflicts in the testimony, weigh the evidence, and
draw reasonable inferences from the evidence presented. See Carter v. State, 620
S.W.3d 147, 149 (Tex. Crim. App. 2021). In this case, evidently the factfinder
resolved the disputed evidence about the speed limit in the officer’s favor.
Because the record does not show that Mitchell preserved error on his first,
fifth, or sixth issues, we may not consider these issues on appeal. See Ford, 305
S.W.3d at 532. We turn now to the issues Mitchell preserved.
Sufficiency of the Evidence
Construing his brief liberally, we understand Mitchell to be arguing that there
was a lack of evidence to support his conviction. See TEX. R. APP. P. 38.9 (briefing
rules to be construed liberally); Canada, 547 S.W.3d at 10–11 (pro se briefs to be
construed liberally). Specifically, he argues the speed limit where the officer first
observed him was 50 miles per hour, not 45 miles per hour.
2
Again, Mitchell did not present evidence of his version of the facts, nor did he
testify. Thus, there was no factual dispute to resolve, but even assuming Mitchell’s
questioning constituted a factual statement, it was the trial court’s responsibility to
resolve factual disputes. See Carter v. State, 620 S.W.3d 147, 149 (Tex. Crim. App.
2021).
8
Applicable Law
To review the legal sufficiency of the evidence to support a conviction, we
must view the evidence in the light most favorable to the verdict and ask whether
any rational trier of fact could have found each element of the offense beyond a
reasonable doubt. Carter, 620 S.W.3d at 149; Hammack v. State, 622 S.W.3d 910,
914 (Tex. Crim. App. 2021); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
We must give deference to “the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Carter, 620 S.W.3d at 149 (quoting Jackson, 443
U.S. at 319).
Analysis
Mitchell was charged with driving a motor vehicle at a speed that was greater
than was reasonable and prudent under the circumstances, specifically, driving 57
miles per hour when the posted speed limit was 45 miles per hour.
Officer Meugniot testified that he observed Mitchell driving 57 miles per hour
in an area where the posted speed limit was 45 miles per hour. He testified this was
not a reasonable and prudent speed under the circumstances. From this testimony,
the trial court could have found beyond a reasonable doubt that Mitchell was
speeding, and thus there was sufficient evidence to support Mitchell’s conviction.
See Carter, 620 S.W.3d at 149; Hammack, 622 S.W.3d at 914; see also Murray v.
9
State, 438 S.W.2d 916, 917 (Tex. Crim. App. 1969) (concluding there was legally
sufficient evidence to support conviction from officer’s testimony that he observed
defendant speeding and clocked him at 70 miles per hour in 35-mile-per-hour zone);
Tollett v. State, 219 S.W.3d 593, 601 (Tex. App.—Texarkana 2007, pet. ref’d)
(concluding there was legally sufficient evidence to support conviction from
officer’s testimony that defendant was driving faster than posted speed limit).
Mitchell vehemently disputed that the posted speed limit was 45 miles per
hour. He attempted to offer into evidence photos he had taken of the applicable speed
limit signs. He repeatedly asserted that the speed limit was actually 50 miles per
hour. But Mitchell did not testify, did not have any other witnesses familiar with the
speed limit testify, and was not able to have his photos admitted into evidence, an
issue we discuss below. Therefore, there was no evidence to support his claim that
the speed limit in that area was 50 miles per hour. Even if Mitchell had introduced
evidence to support his claim, it was the trial court’s responsibility to resolve any
conflicts in the testimony, and the trial court was entitled to believe the police
officer’s testimony. See Carter, 620 S.W.3d at 149.
In his brief, Mitchell asks this court to search Google Maps for the location of
the speed limit sign or send officers to look. However, this court cannot investigate
to determine facts. See, e.g., Manzi v. State, 88 S.W.3d 240, 243 (Tex. Crim. App.
2002) (describing appellate courts’ “traditional inability to find facts” and deference
10
to trial courts’ determinations of fact). We must defer to the trial court’s
determination of fact if there is sufficient evidence the support that determination.
In this case, there is.
Further, even if Mitchell had established the speed limit were 50 miles per
hour, the police officer testified that Mitchell was driving at a speed of 57 miles per
hour, so the trial court still could have found beyond a reasonable doubt that Mitchell
was speeding.
We overrule Mitchell’s seventh issue.
Due Process
Next, Mitchell argues he was denied due process of law because the
prosecutor did not fulfill her duty to investigate his claim that the posted speed limit
was 50 miles per hour.
Applicable Law
The Fifth and Fourteenth Amendments to the United States Constitution
guarantee “due process of law.” U.S. CONST. amends. V, XIV. The Texas
Constitution likewise guarantees “due course of law.” TEX. CONST. art. I, § 19.
Under both constitutions, this means that the accused must be given “fundamental
fairness necessary to due administration of justice.” Reese v. State, 877 S.W.2d 328,
333 (Tex. Crim. App. 1994).
11
Due process requires the State to prove every element of the charged offense
beyond a reasonable doubt. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App.
2018); see also Jackson, 443 U.S. at 316. But the State is not required to exclude
every conceivable alternative theory to establish a defendant’s guilt. See Merritt v.
State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); see also Turro v. State, 867
S.W.2d 43, 47 (Tex. Crim. App. 1993) (explaining that evidence is not rendered
insufficient simply because defendant presented different version of events).
Analysis
Mitchell argues the prosecutor should have investigated his claim that the
posted speed limit was 50 miles per hour before trial. However, a prosecutor does
not have an independent duty to investigate a defendant’s version of events; due
process requires that the prosecutor prove each element of the charged offense
beyond a reasonable doubt. Nisbett, 552 S.W.3d at 262; Merritt, 368 S.W.3d at 525.
We have already concluded the prosecution presented sufficient evidence to prove
Mitchell was speeding beyond a reasonable doubt.
Mitchell cites several other statutes and rules in his brief that create duties for
the prosecution. E.g., TEX. CODE CRIM. PROC. art. 2.01 (“It shall be the primary duty
of all prosecuting attorneys, including any special prosecutors, not to convict, but to
see that justice is done. They shall not suppress facts or secrete witnesses capable of
establishing the innocence of the accused.”); id. art. 39.14(h) (“[T]he [S]tate shall
12
disclose to the defendant any exculpatory, impeachment, or mitigating document,
item, or information in the possession, custody, or control of the [S]tate that tends to
negate the guilt of the defendant or would tend to reduce the punishment for the
offense charged.”); TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.09, reprinted
in TEX. GOV’T CODE, tit. 2, subtit. G., app. A (describing special responsibilities of
prosecutor, including responsibility to timely disclose evidence that tends to negate
guilt). But he has not cited any statute or rule requiring the prosecutor to investigate
his claim. There is no due-process violation in the prosecutor’s decision not to
investigate Mitchell’s claim. See Merritt, 368 S.W.3d at 525 (“It is the State’s burden
to prove each element of the offense beyond a reasonable doubt, not to exclude every
conceivable alternative to a defendant’s guilt.”).
We overrule Mitchell’s second issue.
Withholding Exculpatory Evidence
Mitchell also argues the prosecutor withheld exculpatory evidence, in
violation of his constitutional due-process right as set out in Brady v. Maryland, 373
U.S. 83, 87 (1963) and in violation of Article 39.14 of the Code of Criminal
Procedure. Specifically, the prosecutor did not disclose evidence responsive to his
motion for discovery and the prosecutor did not give him the officer’s dash cam
video of the traffic stop before trial.
13
Applicable Law
Ordinarily, we will not reverse a conviction unless the trial court makes a
mistake. Johnson v. State, 169 S.W.3d 223, 228–29 (Tex. Crim. App. 2005). But in
some cases, the prosecutor’s misconduct can require reversal, like when the
prosecutor suppresses exculpatory evidence. Id. at 229.
A prosecutor’s duty to disclose exculpatory evidence stems from three
sources: Subsection (h) of Article 39.14 of the Code of Criminal Procedure,
Subsection (a) of that article, and the defendant’s due-process right as set out in
Brady.
Subsection (h) of Article 39.14 of the Code of Criminal Procedure creates an
affirmative duty for the State to disclose “any exculpatory, impeachment, or
mitigating document, item, or information in the possession, custody, or control of
the [S]tate that tends to negate the guilt of the defendant or would tend to reduce the
punishment for the offense charged.” TEX. CODE CRIM. PROC. art. 39.14(h).
Subsection (h) creates “an independent and continuing duty for prosecutors to
disclose evidence that may be favorable to the defense.” Watkins v. State, 619
S.W.3d 265, 277 (Tex. Crim. App. 2021). The State must disclose this type of
evidence in its possession even without a request by the defendant. See id. Because
the legislature did not limit Subsection (h) to material evidence, the State’s duty to
disclose under this article is broader than the duty to disclose under Brady. Id.
14
Any other evidence “that does not tend to negate guilt or mitigate punishment”
must be disclosed on the defendant’s request under Subsection (a) of Article 39.14.
Id.; TEX. CODE CRIM. PROC. art. 39.14(a). Subsection (a) provides that, after a timely
request by the defendant, the State “shall produce and permit the inspection and the
electronic duplication” of “any offense reports, any designated documents, papers,
written or recorded statements of the defendant or a witness” and “any designated
books, accounts, letters, photographs, or objects or other tangible things” that: (1)
are “not otherwise privileged”; (2) “constitute or contain evidence material to any
matter involved in the action”; and (3) “are in the possession, custody, or control of
the [S]tate.” TEX. CODE CRIM. PROC. art. 39.14(a). In this context, “material” means
“relevant.” Watkins, 619 S.W.3d at 280. However, a defendant is not permitted to
remove the documents, items, or information from the State’s possession and may
only inspect the evidence in the presence of a representative of the State. TEX. CODE
CRIM. PROC. art. 39.14(a). Specifically, “[i]n the case of a pro se defendant,” the
State must permit the pro se defendant to inspect and review the evidence, but the
State “is not required to allow electronic duplication” of the evidence. Id. art.
39.14(d).
Under constitutional due process, a prosecutor has a duty to disclose material,
exculpatory information on the defendant’s request. See Brady, 373 U.S. at 87. A
Brady violation occurs when the State suppresses material evidence favorable to a
15
defendant. See Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). To
establish reversible error due to a Brady violation, a defendant must show: (1) the
State failed to disclose evidence; (2) the evidence is favorable to the defendant; and
(3) the evidence is material, in this context meaning there is a reasonable probability
that if the evidence had been disclosed, the outcome of the trial would have been
different. Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011). The “mere
possibility” that certain evidence might have helped the defense does not establish
the evidence is material in this context. Lindsey v. State, 582 S.W.3d 810, 821 (Tex.
App.—Houston [14th Dist.] 2019, no pet.) (quoting United States v. Agurs, 427 U.S.
97, 109–10 (1976)); see also Allen v. State, 473 S.W.3d 426, 457 (Tex. App.—
Houston [14th Dist.] 2015, pet. dism’d) (speculation about existence, contents,
favorability, and usefulness of evidence does not establish Brady materiality). Brady
only requires the prosecution to disclose information that is known to the State but
not the defense. See Pena, 353 S.W.3d at 810. Therefore, Brady does not require the
State to disclose evidence it does not have in its possession or that does not exist. Id.
Nor does Brady require the State to disclose evidence the defendant is aware of or
can access from other sources. Id.
Under all three of these sources, the State is only obligated to disclose
evidence in its possession. See id.; TEX. CODE CRIM. PROC. art. 39.14(a), (h). Neither
Brady nor Article 39.14 requires the State to seek out information for the defendant
16
or to create any document that does not already exist. See Pena, 353 S.W.3d at 810;
Coleman v. State, 577 S.W.3d 623, 634–35 (Tex. App.—Fort Worth 2019, no pet.).
The defendant has the burden to show the complained-of evidence was in the State’s
possession but withheld. See Pena, 353 S.W.3d at 809–10 (explaining Brady
requires State to disclose evidence in its possession and defendant has burden to
prove Brady violation); Turpin v. State, 606 S.W.2d 907, 915 (Tex. Crim. App.
1980) (“Where there is no showing . . . that the items sought are in the possession of
the prosecution, the defendant is not entitled to relief on appeal.”); Lindsey, 582
S.W.3d at 820 (explaining that to show violation of Article 39.14, appellant was
required to show State had possession, custody, or control of requested evidence but
failed to produce it).
Analysis
Before trial, Mitchell filed a motion for discovery. He requested:
(1) any and all written or recorded statements of witnesses, statements,
diagrams, or drawings made by the officer;
(2) a description of the type of radar used, the device serial number, and
the date of last calibration;
(3) the location and position of the officer’s vehicle on a map, and, if in
motion, the location, speed and direction of the officer’s vehicle in
relation to Mitchell’s vehicle at the time of the radar reading;
(4) the distance from Mitchell’s car at which the radar evaluated his speed;
(5) proof of the officer’s training and certification for operating the radar;
17
(6) documentary proof that the radar used to evaluate his speed met or
exceeded the minimal operational standards of the National Highway
Traffic Safety Administration and the Texas Department of
Transportation and had had been calibrated within the manufacturer’s
required scheduled maintenance by a certified independent radar repair
technician;
(7) the officer’s employment records, including any complaints or
disciplinary actions; and
(8) any photos or video of Mitchell or the alleged offense taken by the
officer or his dash cam.
The record shows the trial court granted requests (1) and (5) conditionally, if
responsive documents existed. The trial court granted request (8), but only as to
photos of Mitchell. The trial court denied the other requests as “not appropriate.”
Before trial began, the trial court asked Mitchell if he had any pretrial motions
that needed rulings. Mitchell answered, “I requested discovery and got nothing.” The
trial court reviewed Mitchell’s discovery requests and asked the prosecutor if any
documents responsive to requests (1) and (5) existed, but she indicated there were
none. The trial court explained, “So I granted (1) and (5), if they existed. They’re
telling me those don’t exist—there isn’t anything responsive to those. Okay. So
there’s nothing else I can do about that. You can ask the officer when—if the officer
testifies, you can ask him if any of those things exist.” Mitchell did not question the
officer about the existence of any of these items.
Mitchell argues on appeal that he was not given any evidence to build his
defense. But the State has no independent duty to seek out information for the
18
defendant. See Pena, 353 S.W.3d at 810; Coleman, 577 S.W.3d at 635. Except for
the dash cam video, Mitchell has not met his burden to show any of the requested
evidence existed or was in the State’s possession, custody, or control. See Pena, 353
S.W.3d at 809–10; Lindsey, 582 S.W.3d at 820.
As for the dash cam video, the record shows the State did disclose the video
to Mitchell. He acknowledged that he viewed the video before trial, just not to the
point “where [he could] make heads or tails out of it,” as he explained to the trial
court. Because Mitchell was acting pro se, the State was not required to “allow
electronic duplication” or give him a copy of the video. TEX. CODE CRIM. PROC. art.
39.14(d).
Before the State played the video at trial or formally admitted it into evidence,
the trial court judge briefly left the courtroom to give Mitchell another opportunity
to watch the video and make objections, if he had any. When the judge returned and
asked Mitchell if he had any objections to the video, Mitchell said he did not. The
State then played the video at trial, before the trial court judge.
Mitchell has not met his burden to show the requested evidence was in the
State’s possession, except for the dash cam video, which was disclosed to him. See
Pena, 353 S.W.3d at 809–10; Lindsey, 582 S.W.3d at 820. On this record, we cannot
say the State violated any duty to disclose evidence under Article 34.19(h), Article
34.19(a), or Brady. We therefore overrule Mitchell’s third issue.
19
Exclusion of Evidence
Lastly, we consider Mitchell’s fourth issue, that the trial court erred in
sustaining the State’s objections to his evidence and not admitting the evidence.
Applicable Law
To admit an item into evidence, the party seeking to admit the item “must
produce evidence sufficient to support a finding that the item is what the [party]
claims it is.” TEX. R. EVID. 901(a); see also Tienda v. State, 358 S.W.3d 633, 638
(Tex. Crim. App. 2012). This is known as authenticating or laying a foundation for
the evidence. A trial court makes the preliminary determination of whether the party
has provided sufficient facts to support a reasonable determination that the item is
authentic. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015). We review
a trial court’s preliminary determination for an abuse of discretion. Id. We will not
reverse the trial court’s ruling if it is “within the zone of reasonable disagreement.”
Id.
The most common way to authenticate a photo or video is through a witness’s
testimony that the photo or video accurately represents the object or scene in
question. Standmire v. State, 475 S.W.3d 336, 344 (Tex. App.—Waco 2014, pet.
ref’d); see also Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988).
20
Analysis
At trial, while questioning the officer, Mitchell offered two photos of speed
limit signs into evidence, and the State objected because the photos did not properly
show the location of the traffic stop and because Mitchell had not laid a proper
foundation—meaning the photos had not been authenticated. The trial court
explained, “[T]hey are saying you have improperly proved these up. . . . So you can
try to do that through the officer, but you need pictures. These have your notes on
them, I think.” Mitchell asked for the photos to be returned so he could cut off the
portions with his notes, but the trial court did not return the photos because they had
already been offered. Mitchell said he could show the officer pictures on his phone,
but the trial court said, “[I]t’s got to be something that . . . we can admit. It can’t be
a cell phone.”
When Mitchell offered the two photos with notes, he had not provided
sufficient facts to support a determination that the photos were authentic. See Butler,
459 S.W.3d at 600. Therefore, the trial court did not abuse its discretion in excluding
the evidence. See id.
Even if the trial court’s ruling excluding the evidence had been in error, it
would not be an error sufficient to reverse Mitchell’s conviction. We cannot reverse
a conviction for a ruling on evidence unless the error affects the appellant’s
“substantial rights.” TEX. R. APP. P. 44.2(b); Bleimeyer v. State, 616 S.W.3d 234,
21
250–51 (Tex. App.—Houston [14th Dist.] 2021, no pet.); see also Walters v. State,
247 S.W.3d 204, 219 (Tex. Crim. App. 2007) (stating erroneous exclusion of
evidence is generally non-constitutional error reviewed under Rule 44.2(b)).3
In this case, even if Mitchell’s photos were authenticated and admitted and he
established that the speed limit was in fact 50 miles per hour where the officer first
saw him, the record shows there was still evidence indicating his guilt and supporting
the verdict. There was evidence that Mitchell was driving 57 miles per hour.
Regardless of whether the posted speed limit was 45 miles per hour or 50 miles per
hour, there was evidence that Mitchell was driving faster than the posted speed limit.
Thus, even if excluding the photos was error, Mitchell’s substantial rights were not
affected, so there is no reversible error. See TEX. R. APP. P. 44.2(b).
We overrule Mitchell’s fourth issue.
CONCLUSION
We affirm the trial court’s judgment.
3
An error affects an appellant’s substantial rights if it has a “substantial and injurious
effect or influence” in determining the verdict. Stredic v. State, 663 S.W.3d 646,
655 (Tex. Crim. App. 2022). An error does not affect an appellant’s substantial
rights if we have “fair assurance,” after reviewing the entire record, that the error
did not influence the verdict “or had but a slight effect.” Id. at 655–56. To make this
determination, we consider: “(1) the character of the alleged error and how it might
be considered in connection with other evidence; (2) the nature of the evidence
supporting the verdict; (3) the existence and degree of additional evidence indicating
guilt; and (4) whether the State emphasized the complained of error.” Gonzalez v.
State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018).
22
Gordon Goodman
Justice
Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
23