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Date: 10-10-2018

Case Style:

Semere Berhe v. The State of Texas

Case Number: 01-17-00540-CR 01-17-00541-CR

Judge: Sherry Radack

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: Lisa Dotin Stewart
Margaret M. Moore
Stacey Soule

Defendant's Attorney: Gary E. Prust

Description:



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On December 29, 2015, at approximately 11:20 p.m., R. Cook returned home
after work. As Cook walked from the parking lot to his apartment, two men
confronted him. Cook testified that one man approached him, held a gun to his
stomach, and demanded his wallet and phone. Unsatisfied that Cook had only $2.00
in his wallet, the two men forced Cook to drive his car to several locations in search
of an ATM. After Cook withdrew $500 from a drive-through ATM and gave the
money to the men, they then forced Cook to drive to the parking lot of a grocery
store and informed Cook that they were going to let him go. Before releasing Cook,
one of the men used a cell phone to take photos of Cook’s driver’s license and license
plate. Cook testified that one man told him that if he reported them to the police, he
would “send his people” after him. After the men left, Cook reported the events to
the police.
Police officers with the Austin Police Department (“APD”), identified
appellant as a suspect and obtained a warrant for his arrest. Members of the Lone
Star Fugitive Task Force (the “Task Force”), an organization comprised of APD and
other local and federal law enforcement, arrested appellant at a hotel on December
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31, 2015. In the course of the arrest, the Task Force obtained appellant’s wallet,
sunglasses, and cell phone. The Task Force then transported appellant and his
property to police headquarters.
At headquarters, APD Detective J. Pelt interviewed appellant. Pelt confirmed
that appellant had a wallet, sunglasses, and cell phone on him when the Task Force
arrested him. During the interview, appellant confirmed his phone number with Pelt
and appellant was given an opportunity to access his cell phone. After the interview,
Pelt gave appellant’s property, including the cell phone, to APD Detective N. Sexton
to submit as evidence.
At trial, appellant’s counsel objected to the admission of appellant’s cell
phone. Specifically, counsel asserted that the State had not adequately established
the beginning of the chain of custody. The State responded that Pelt’s prior
testimony was sufficient to authenticate the phone. Any gaps in the chain of custody,
the State argued, would go to the weight, and not the admissibility, of the evidence.
The trial court overruled appellant’s objection and admitted the cell phone.
Upon the conclusion of the trial, the jury found appellant guilty of aggravated
kidnapping and robbery. Appellant timely appealed.
Authentication of Evidence
In his sole point of error, appellant argues that the trial court erred when it
admitted appellant’s cell phone without the first link in the chain of custody.
5



Standard of Review and Applicable Law
We review a decision to admit evidence on an abuse of discretion standard.
Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) (op. on reh’g); Porter
v. State, 969 S.W.2d 60, 64 (Tex. App.—Austin 1998, pet. ref’d); McGregor v. State,
394 S.W.3d 90, 117 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). We will
affirm the trial court’s decision if it was “at least within the zone of reasonable
disagreement.” Tienda, 358 S.W.3d at 638 (quoting Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1990)).
A trial court has great discretion to admit or deny evidence. Druery v. State,
225 S.W.3d 491, 503 (Tex. Crim. App. 2007). A trial court should admit evidence
only if the evidence is properly authenticated. See id. at 502. The authentication
requirement is satisfied “by evidence sufficient to support a finding that the matter
in question is what the proponent claims.” Id. (quoting TEX. R. EVID. 901(a)). Many
different forms of evidence may satisfy the authentication requirement. See Tienda,
358 S.W.3d at 638; TEX. R. EVID. 901(b). For example, the requirement may be
satisfied by the testimony of a witness with knowledge of the piece of evidence.
Gardner v. State, 306 S.W.3d 274, 293 (Tex. Crim. App. 2009) (citing TEX. R. EVID.
901(b)(1)); Stanley v. State, 606 S.W.2d 918, 919 (Tex. Crim. App. 1980) (stating
6

that complainant’s testimony that shotgun offered by State looked like gun used
during robbery justified its admission in evidence); Outland v. State, 810 S.W.2d
474, 475 (Tex. App.—Fort Worth 1991, pet. ref’d) (stating that because officer
identified gun as that retrieved from getaway vehicle, chain of custody need not be
shown).
If the party seeking admission cannot identify the evidence “through
distinctive markings . . . or if the evidence is fungible, as are drugs or tests results,”
proof of chain of custody is required. Davis v. State, 992 S.W.2d 8, 10–11 (Tex.
App.—Houston [1st Dist.] 1996, no pet.) (citing Hammett v. State, 578 S.W.2d 699,
708 (Tex. Crim. App. 1979)). The chain-of-custody requirement generally applies
to indistinguishable objects. See Frasier v. State, No. 03-09-00354-CR, 2010 WL
3058256, at *2 (Tex. App.—Austin Aug. 5, 2010, no pet.) (mem. op.) (bag of
methamphetamine); Clemens v. State, No. 03-05-00156-CR, 2008 WL 2065986, at
*5–6 (Tex. App.—Austin May 15, 2008, no pet.) (mem. op.) (samples of gasoline);
Foley v. State, No. 01-11-00113-CR, 2012 WL 1564685, at *4 (Tex. App.—Houston
[1st Dist.] May 3, 2012, pet. ref’d) (mem. op.) (sample of heroin). Ultimately, the
trial court must decide whether there is evidence to support a “reasonable jury
determination that the [proffered] evidence is authentic.” Tienda, 358 S.W.3d at
638; Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.);
7

Jones v. State, 466 S.W.3d 252, 262 (Tex. App.—Houston [1st Dist.] 2015, pet.
ref’d).

Analysis
Appellant argues that the chain of custody was inadequate because the State
failed to prove the beginning of the chain of custody. Specifically, appellant argues
that Detective Pelt testified at trial that the chain of custody began with Detective
Sexton and because Sexton did not testify at trial, the State did not prove the
beginning of the chain of custody. Appellant concludes that the State did not
properly authenticate the evidence, and the trial court erred when it admitted the cell
phone. The State responds that Detective Pelt adequately linked the cell phone to
appellant for authentication purposes and that chain of custody was not required to
authenticate the cell phone.
The State need only prove chain of custody if it does not otherwise
authenticate the evidence, such as by providing a witness who testifies to the
evidence’s authenticity. See Davis, 992 S.W.3d at 10–11. At the time of the phone’s
admission, the State had presented sufficient evidence to support a “reasonable jury
determination” that the phone was authentic. Tienda, 358 S.W.3d at 638.
At trial, Pelt testified that the Task Force recovered appellant’s phone and
delivered it to him at headquarters. Pelt testified that, during the interview, appellant
8

confirmed his phone number and used the phone to access several phone numbers.
Additionally, Pelt confirmed that, after the interview, he gave the phone to Sexton
and that Sexton deposited the phone in evidence storage. Finally, Pelt testified that
the phone in the courtroom was the same phone that was delivered to him by the
Task Force. Having handled the phone during the interview and having witnessed
appellant use the phone, Pelt had knowledge that the phone was what the State
purported it to be.6 Because the State elicited testimony that was sufficient for the
trial court to have determined that the phone was what the State purported it to be,
the trial court did not abuse its discretion in admitting the phone. TEX. R. EVID.
901(a).
We overrule appellant’s sole point of error.
Motion for Judgment Nunc Pro Tunc
On May 31, 2018, the State filed a motion for judgment nunc pro tunc, noting
that the judgment in cause number D-1-DC-15-302752, appellate cause number 01
17-00540-CR, erroneously states that appellant was convicted of a first degree
felony. The State points out that, because appellant was convicted of aggravated
kidnapping and that the trial court found during punishment that appellant released
6 Subsequently, Pelt obtained a search warrant for appellant’s cell phone. After obtaining the warrant, Pelt requested that APD’s digital forensics unit process the phone. Detective W. Pursley of the APD digital forensic unit found pictures of Cook’s driver’s license and license plates on appellant’s phone, thus corroborating Cook’s testimony.
9

the victim in a safe place, the judgment should reflect that appellant was convicted
of a second-degree felony. See TEX. PENAL CODE ANN. § 20.04(d) (West 2011).
Appellant has not responded to the State’s motion.
While it is the trial court that has the authority to enter a nunc pro tunc
judgment pursuant to Rule 23.1 of the Texas Rules of Appellate Procedure, we have
the authority to correct a trial court’s judgment when we have the necessary
information to do so. See TEX. R. APP. P. 23.1, 43.2(b); Bigley v. State, 865 S.W.2d
26, 27–28 (Tex. Crim. App. 1993); Figueroa v. State, 250 S.W.3d 490, 518 (Tex.
App.—Austin 2008, pet. ref’d). After reviewing the record and judgment, we agree
with the State that the trial court determined that appellant released the victim in a
safe place, and therefore the judgment should reflect that appellant was convicted of
a second degree felony. See TEX. PENAL CODE ANN. § 20.04(d).
Accordingly, in trial court cause number D-1-DC-15-302752, we modify the
judgment to reflect that appellant was convicted of a second degree felony.

Outcome: We modify the trial court’s judgment in trial court cause number D-1-DC-15
302752 and affirm as modified. We affirm the trial court’s judgment in trial court cause number D-1-DC-15-302753.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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