Opinion issued November 15, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00213-CR
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ANTHONY MICHAEL LONGORIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case No. 1378394
MEMORANDUM OPINION
A jury convicted appellant Anthony Michael Longoria of aggravated
robbery with a deadly weapon. See TEX. PENAL CODE § 29.03. The State alleged an
enhancement based on Longoria’s previous felony conviction for possession of a
controlled substance. The jury found the allegation of the enhancement to be true,
and it assessed punishment at 20 years in prison.
On appeal, Longoria argues that the trial court erred by including an
extraneous-offense limiting instruction in the jury charge over his objection. He
also contends that a videorecording admitted into evidence was not authenticated
properly.
We affirm the judgment of the trial court.
Background
A jury convicted Longoria of committing aggravated robbery at the home of
complainant Branislav Kupresakovic in Katy, Texas. See TEX. PENAL CODE
§ 29.03. Kupresakovic testified that late one evening someone knocked on the door
of his home. He looked through the peephole in his front door and saw a young
man he believed could have been a friend of his son. Kupresakovic opened the
door, and then the young man pushed on the door and forced his way into the
home. Two more men followed, with at least one of them wearing a bandana on his
face. Kupresakovic screamed to his wife and adult son to call the police.
While Kupresakovic was held at gunpoint, his wife and son made their way
into the master bedroom. The son found his father’s loaded gun under the bed.
When one of the intruders entered the bedroom and told them “to go in the living
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room and lay down,” the son shot and killed him. Upon hearing the gunshots, the
other two men fled the house. The Kupresakovics then called the police.
The police stopped a vehicle identified by a neighbor who saw the two
intruders fleeing the Kupresakovics’ house. The two occupants, Brandon Trey
King and Anthony Michael Longoria, were detained as robbery suspects. King and
Longoria initially were held together in the back of a police car, where they
discussed the robbery. A camera recorded their conversation. One of the detectives
assigned to investigate the robbery, Sergeant Clopton, listened to the recording at
the crime scene.
Longoria was indicted and tried on a charge of aggravated robbery. During
trial, the State introduced evidence suggesting extraneous offenses committed by
Longoria. A stolen handgun found the day following the robbery in the vicinity of
the crime scene was offered into evidence. The police discovered that the gun had
been stolen in Wiley, Texas, where Longoria is from. The State also presented
evidence that Longoria smoked marijuana. The trial court included an extraneous-
offense limiting instruction in the jury charge, over Longoria’s objection.
A jury convicted Longoria of aggravated robbery, and it found the
allegations of an enhancement to be true. During the punishment stage, the police-
car recording of Longoria’s conversation with King was offered into evidence,
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over an objection that it had not been authenticated. The jury sentenced Longoria
to 20 years in prison.
Analysis
Longoria raises four issues on appeal. In his first three issues, he contends
that the trial court erred by including an extraneous-offense limiting instruction in
the jury charge. In his fourth issue, Longoria argues that the trial court erred by
admitting an improperly authenticated videorecording during the punishment stage.
I. Jury charge
Longoria contends that the trial court erred by including an extraneous-
offense limiting instruction in the jury charge over his objection. The charge
included the following instruction:
You are further instructed that if there is any evidence before you in
this case regarding the defendant’s committing an alleged offense or
offenses other than the offense alleged against him in the indictment
in this case, you cannot consider such evidence for any purpose unless
you find and believe beyond a reasonable doubt that the defendant
committed such other offense or offenses, if any, and even then you
may only consider the same in determining the motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident of the defendant, if any, in connection with the offense, if
any, alleged against him in the indictment and for no other purpose.
In reference to this limiting instruction, Longoria’s counsel asserted at the
charge conference that “there really hasn’t been any evidence of extraneous
offenses” and asked that the instruction “be deleted.” The court responded that
there “may have been very minimal” evidence of extraneous offenses including the
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“the defendant’s use of drugs” and the “implication that there may have been a
burglary.” As a result, the trial judge stated that she was giving the instruction to
ensure that such evidence “would have to be proved beyond a reasonable doubt,”
and “taken into account” for “404(b) reasons.” The court included the instruction
over Longoria’s objection.
On appeal, jury-charge error is reviewed using a two-step process. Ngo v.
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). First, the court determines
whether error exists in the charge. Id. To determine whether there was error in the
charge, it is considered “as a whole instead of a series of isolated and unrelated
statements.” Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). If
error does exist, the record is reviewed to determine whether the error caused
sufficient harm to require reversal of the conviction. Ngo, 175 S.W.3d at 743.
When the defendant properly objects to the error in the charge, reversal is required
unless the error was harmless. Id.; see also Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1984); Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d, untimely filed). If the defendant fails to object
to the charge, we will not reverse for jury-charge error unless the record shows
“egregious harm” to the defendant. Ngo, 175 S.W.3d at 744-45.
In his first two issues, Longoria argues that the trial court erred because its
decision to include the instruction violated Texas Rule of Evidence 105 and
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Article 36.14 of the Texas Code of Criminal Procedure. He contends that because
his counsel did not request a limiting instruction at the time the evidence was
offered into evidence, it was admitted for all purposes under Rule 105. As a result,
Longoria contends the limiting instruction included in the jury charge by the trial
court was not “law applicable to the case” to be included in the charge pursuant to
Article 36.14.
Rule 105 provides: “If the court admits evidence that is admissible against a
party or for a purpose—but not against another party or for another purpose—the
court, on request, must restrict the evidence to its proper scope and instruct the jury
accordingly.” TEX. R. EVID. 105(a). If a defendant fails to request a limiting
instruction at the time the evidence is admitted, the court is not obligated to include
a limiting instruction in the charge. See, e.g., Williams v. State, 273 S.W.3d 200,
230 (Tex. Crim. App. 2008); Delgado v. State, 235 S.W.3d 244, 254 (Tex. Crim.
App. 2007); Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001). But
that principle does do not prohibit the trial court from giving such an instruction on
its own initiative. See, e.g., Williams, 273 S.W.3d at 230; Delgado, 235 S.W.3d at
254; Hammock, 46 S.W.3d at 893.
Under Article 36.14, the trial court is required to give the jury “a written
charge distinctly setting forth the law applicable to the case.” TEX. CODE CRIM.
PROC. art. 36.14; see Celis v. State, 416 S.W.3d 419, 433 (Tex. Crim. App. 2013).
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In this case, there was evidence of extraneous offenses, including Longoria’s use
of drugs and the implication that Longoria may have stolen the gun. The State had
the burden to prove all extraneous offenses beyond a reasonable doubt. See TEX.
CODE CRIM. PROC. art. 37.07.
Even though Longoria did not request a limiting instruction at the time the
evidence was admitted, the instruction included in the charge was a correct
statement of the law that applied to the case. Because the trial court is not
prohibited from giving a limiting instruction when the defendant does not request
one, and the instruction given was a correct statement of the law, the trial court did
not violate Rule 105 or Article 36.14.
In his third issue, Longoria contends that by giving the limiting instruction,
the trial court violated his Sixth Amendment right to counsel. He contends that
there were valid strategic reasons not to call the jury’s attention to the extraneous
offenses by mentioning them in the limiting instruction, and the trial court’s
decision to give the instruction over the objection of counsel deprived him of the
benefit of that strategic choice.
To preserve error, counsel must present his objection to the court “distinctly
specifying each ground of objection.” TEX. CODE CRIM. PROC. art. 36.14. The
objection must be specific and clear enough to apprise the trial court of the nature
of the objection. See Starks, 127 S.W.3d at 133; see also TEX. CODE CRIM. PROC.
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art. 36.14; TEX. R. APP. P. 33.1. Longoria’s counsel objected to the charge by
stating that “there really hasn’t been any evidence of extraneous offenses” and
asking that the instruction “be deleted.” This is not a sufficient objection to suggest
to the trial court that including the instruction would violate Longoria’s Sixth
Amendment right to counsel.
Because of the lack of objection, we will not reverse for jury-charge error
unless the record shows that Longoria suffered “egregious harm” as a result of the
instruction. See Ngo, 175 S.W.3d at 744–45. In this case, Longoria’s counsel
objected to the inclusion of the limiting instruction in the jury charge. Although the
objection was not sustained, Longoria still received the benefit of his lawyer’s
advocacy on that point. By overruling counsel’s objection and including a limiting
instruction that contained a correct application of the law, the trial court did not
deny Longoria his Sixth Amendment right to counsel.
In Fair v. State, the defendant did not request an extraneous-offense limiting
instruction during trial, yet he objected to the trial court’s inclusion of such an
instruction in the jury charge. 465 S.W.2d 753, 755 (Tex. Crim. App. 1971). The
Court of Criminal Appeals held that the trial court had not committed reversible
error by including the instruction, and it observed that the charge given “was not
harmful but beneficial to the appellant.” Id. Similarly, in Gilmore v. State, a trial
court included a limiting instruction in the jury charge even though the defendant
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did not request one. No. 01-09-00260-CR, 2010 WL 987733, at *3 (Tex. App.—
Houston [1st Dist.] March 18, 2010, pet. ref’d) (mem. op., not designated for
publication). On appeal, the defendant contended that the trial court erred by
including the instruction. Id. at *4. Because he did not object to the instruction at
trial, this court reviewed the inclusion of the instruction under the egregious-harm
standard, and found that he had not suffered egregious harm as a result of the
instruction. Id. at *4. Likewise in this case, Longoria did not suffer egregious harm
as a result of the trial court’s instruction.
Because the trial court did not violate Rule 105 or Article 36.14, and
Longoria did not suffer egregious harm, we overrule his first, second, and third
issues.
II. Authentication of evidence
In his final issue, Longoria argues that the trial court erred by admitting a
video recording of a conversation that took place in the back of a police car
following his arrest. Longoria frames his challenge to the admission of the video as
an issue of the evidence’s authenticity.
A trial court’s decision to admit or exclude evidence is reviewed under an
abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim.
App. 2006). A trial court abuses its discretion when it acts arbitrarily and
unreasonably, without reference to any guiding rules or principles. Montgomery v.
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State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). A trial court’s evidentiary
ruling will not be reversed unless that ruling falls outside the zone of reasonable
disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).
As a condition precedent to admissibility, the proponent of the evidence
must satisfy the requirement of authentication by showing that “the matter in
question is what its proponent claims.” TEX. R. EVID. 901(a). The question of
authentication arises when the relevance of proffered evidence “‘depends upon its
identity, source, or connection with a particular person, place, thing or event.’”
Angleton v. State, 971 S.W.2d 65, 70 (Tex. Crim. App. 1998) (quoting 2 Steven
Goode, et al., Texas Practice Guide to Texas Rules of Evidence: Civil & Criminal
§ 9.01, at 191–92 (2d ed. 1993)). In performing its “gate-keeping function, the trial
court itself need not be persuaded that the proffered evidence is authentic.” Tienda
v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). “The preliminary question
for the trial court to decide is simply whether the proponent of the evidence has
supplied facts that are sufficient to support a reasonable jury determination that the
evidence he has proffered is authentic.” Id. “Evidence may be authenticated in a
number of ways, including by direct testimony from a witness with personal
knowledge, by comparison with other authenticated evidence, or by circumstantial
evidence.” Id.
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The recording admitted in this case includes the audio of a conversation
between Longoria and King that took place in the back of a police cruiser
following their arrest. The two men can be heard talking, but they are not visible
on the video. At trial, Longoria objected to the video on the basis that the State had
not proven that it had “not been tampered with or where it originated from,” and
that Officer McHugh—the operator of the car where they were detained and
recorded—would have to be the one to authenticate the video, rather than Sergeant
Clopton, the sponsoring witness at trial, who could not testify “whether or not the
recording device was working properly.”
In support of his argument that the State did not properly authenticate the
video, Longoria argues that a proponent of a recording must adduce more evidence
than the court required of the State in this case. He relies upon Page v. State, 125
S.W.3d 640 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d), in which the trial
court admitted a videotape of a robbery that took place at a grocery store. Id. at
645, 648. The State authenticated the video through the store’s loss-prevention
investigator, who was not present at the store at the time of the robbery. Id. at 648.
The investigator explained the functioning of the store’s 16–camera digital
recording system and how he had accessed recorded images from the system
shortly after the robbery, reviewed the recording with the police, copied it onto a
videotape, and gave it to the officers. Id. He also testified that he had viewed the
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videotape before trial, and it had not been altered. Id. The court held that such
evidence was sufficient to enable a reasonable juror to conclude that the videotape
was what the State claimed it was, and the trial court did not abuse its discretion in
admitting it into evidence. Id. at 648–49.
In this case, the State relied on the sponsoring testimony of Sergeant
Clopton, who testified during the guilt-innocence stage that he was present at the
crime scene on the night of the robbery and that he listened to the recording on that
night. During the punishment stage, he testified that most of the Harris County
Sheriff’s Office patrol vehicles are equipped with digital “video as well as audio”
recording devices and that Officer McHugh’s patrol vehicle had this equipment on
the night of the robbery. He further explained how the equipment worked, that
Longoria and King had been detained together in Officer McHugh’s car, and that
he reviewed the recording of their conversation on the night of the incident.
Finally, he identified the State’s exhibit as a fair and accurate copy of the one he
had listened to on that night and agreed that it had not been “tampered with in any
way.”
This testimony is sufficient to enable a reasonable juror to conclude that the
videorecording was what the State claimed it was. See Thierry v. State, 288 S.W 3d
80, 90 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); see also Page, 125
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S.W.3d at 648–49. The trial court did not abuse its discretion in admitting the
video recording. We overrule Longoria’s fourth issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Bland, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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