Jessica Lynn Musante v. the State of Texas

Affirmed and Memorandum Opinion filed January 9, 2024

In The

Fourteenth Court of Appeals

NO. 14-22-00478-CR

JESSICA LYNN MUSANTE, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No 1
Fort Bend County, Texas
Trial Court Cause No. 18-CCR-198221A

MEMORANDUM OPINION

Appellant Jessica Musante was charged with theft of property of more than
$100 and less than $750. Tex. Penal Code Ann. § 31.03(e)(2)(A). She was
convicted by a jury and sentenced to 30 days in jail. Appellant asserts two issues
on appeal: (1) the trial court erred in admitting surveillance video of the incident
because the video lacked a proper chain of custody; and (2) the court erred in
admitting the police body camera video because appellant’s encounter with police
constituted custodial interrogation without Miranda warnings. Miranda v. Arizona,
384 U.S. 436, 467–68 (1966). Finding no error, we overrule appellant’s issues and
affirm the judgment of the trial court.
Background

On December 28, 2017, a Target asset protection manager observed
appellant stuffing cosmetics worth $378.82 into her purse and leaving without
paying for the items. Appellant objected to the introduction of a surveillance video
showing her in the store based on hearsay, arguing the business record exception
did not apply. Appellant also objected to the introduction of police body camera
video because it depicted a custodial interrogation and she was not given her
Miranda warnings. The trial court overruled both objections.

Analysis

I. Authentication
A. Error not preserved because the objection at trial was different than the
error argued on appeal.
In her first issue, appellant claims the court erred in admitting a surveillance
video of the incident because the video lacked a proper chain of custody. But she
did not preserve error on appeal because her objection in the trial court does not
match her complaint on appeal. To preserve an error for appellate review, the
complaining party must make a specific objection and obtain a ruling on the
objection. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). If an
objection made in the trial court differs from the complaint made on appeal, a
defendant has not preserved any error for review. Thomas v. State, 723 S.W.2d
696, 700 (Tex. Crim. App. 1986).
Here, the defense objection made in the trial court — hearsay — differs
from the defense complaint on appeal: a lack of authentication error due to an
improper chain of custody. See H2O Sols., Ltd. v. PM Realty Grp., LP, 438 S.W.3d

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606, 623 n.6 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (“Authenticity of
a document and admissibility of that document under an exception to the hearsay
rule are separate inquiries.”) Specifically, the authentication inquiry is a
prerequisite to admissibility. See S.D.G. v. State, 936 S.W.2d 371, 381 (Tex.
App.—Houston [14th Dist.] 1996), writ denied). (“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.”) Similarly, this court held a hearsay objection made at trial
does not preserve a Confrontation Clause error on appeal. See Craven v. State, 579
S.W.3d 784, 786-87 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (Finding that
an objection made on hearsay grounds does not preserve a Confrontation Clause
complaint on appeal.)
At trial, the defense objected to the surveillance video marked State’s
Exhibit 2 because it was hearsay and the business record exception was not
satisfied. The trial court overruled that objection. On appeal, appellant claims the
trial court failed to properly authenticate the surveillance video marked State’s
Exhibit 2 because a proper chain of custody was not established, as no one from
the company which stored the video testified that the company received the video
or returned it to prosecutors.
In sum, appellant did not preserve any error for review because the objection
at trial was different than the complaint made on appeal. See Thomas, 723 S.W.2d
at 700.
B. No authentication error because surveillance video was authenticated
through a witness with personal knowledge.
But even if appellant preserved her authentication objection on appeal, her
argument fails. On appeal, we review a trial court's ruling on authentication issues
under an abuse of discretion standard. Fowler v. State, 544 S.W.3d 844, 848 (Tex.

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Crim. App. 2018). This deferential standard requires us to uphold a trial court's
admissibility decision when that decision is within the zone of reasonable
disagreement. Id. A trial court is given considerable latitude with regard to its
evidentiary rulings, and different trial judges may “reach different conclusions in
different trials on substantially similar facts without abusing their discretion.” Id.

To authenticate a piece of evidence, the proponent must provide evidence
sufficient to show “the item is what the proponent claims it is.” Tex. R. Evid.
901(a). 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. Tienda v. State, 358 S.W.3d
633, 638 (Tex. Crim. App. 2012). “[T]he most common way to authenticate a
video is through the testimony of a witness with personal knowledge who observed
the scene.” Jackson v. State, 617 S.W.3d 916, 931 ((Tex. App.—Houston [14th
Dist.] 2021, no pet.) (quoting Fowler, 544 S.W.3d at 849).

Video recordings without audio are treated as photographs and are properly
authenticated when it can be proved that the images accurately represent the scene
in question and are relevant to a disputed issue. Fowler, 544 S.W.3d at 849. Any
witness who observed the object or the scene depicted in the photograph may lay
the predicate. S.D.G. 936 S.W.2d at 381.The trial court is afforded considerable
discretion in ruling on the admissibility of photographic evidence. Id. “When a
motion picture or a photograph is a proper representation of an important fact in
issue, the admission or rejection of it is a matter which rests largely within the
discretion of the trial judge, and that decision will not be disturbed on appeal
unless an abuse of discretion is shown.” Id. (quoting Apache Ready Mix Co., Inc.
v. Creed, 653 S.W.2d 79, 84 (Tex. App.—San Antonio 1983, writ dism'd).
Evidence can also be authenticated by the “appearance, contents, substance,

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internal patterns, or other distinctive characteristics of the item, taken together with
all the circumstances.” Jackson, 617 S.W.3d at 931 (quoting Fowler, 544 S.W.3d
at 849).
In a jury trial, it is the jury's role ultimately to determine whether an item of
evidence is indeed what its proponent claims; the trial court need only make the
preliminary determination that the proponent of the item has supplied facts
sufficient to support a reasonable jury determination that the proffered evidence is
authentic. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015).
Conclusive proof of authenticity before allowing admission of disputed evidence is
not required. Fowler, 544 S.W.3d at 848. The authentication rule 901 “merely
requires some evidence sufficient to support a finding that evidence in question is
what the proponent claims.” Id.
Here, the surveillance video marked State’s Exhibit 2 was properly
authenticated because a witness with personal knowledge, the Target asset
protection manager Christopher Beisart, testified he was operating the video
surveillance system when the video was captured. Moreover, Beisart testified that
the surveillance video, which has no sound, was a true and accurate representation
of the events and that the video had not been altered in any way. Finally, the
surveillance video was properly authenticated because Beisart testified that he
recognized his initials on it.

In conclusion, the surveillance video marked State’s Exhibit 2 was properly
authenticated because Beisart had personal knowledge of the recording and
testified it accurately represented the scene. We overrule appellant’s first point of
error.

II. Miranda error not preserved due to the objection’s lack of specificity.

In appellant’s second point of error, appellant claims the court erred in

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admitting the police body camera video because the video depicted custodial
interrogation when appellant was not given her Miranda warnings.

When parts of a recording are inadmissible, and other parts are admissible,
error is not preserved if the objection does not specifically point out which portion
is inadmissible. Whitaker v. State, 286 S.W.3d. 355, 369 (Tex. Crim. App. 2009).
A trial court is not obligated to search through the evidence and remove “all of the
inadmissible references so that the recorded statements only contained the
admissible evidence.” Id.
Here, the body camera video is about fifty-four minutes and shows Officer
Torres and appellant as Officer Torres completes his investigation of the theft.
Appellant argued six minutes of the body camera video was inadmissible because
she claimed she was in custodial interrogation without having received her
Miranda rights, but did not specify which portion of the video was inadmissible in
her objection1.
MR. HUGHES: Okay. Your Honor, it is our position that parts of the
video, by no means, all, in fact, it's probably only about six minutes
by my calculation. It's the Defense's position that the questioning of
Officer Torres questioning Ms. Musante constitutes custodial
interrogation. It's our position that she was, in fact, in custody. She
was not free to leave, and that Miranda warnings were not given prior
to that questioning beginning. So, for that reason, we would argue that
it's not admissible pursuant to 38.22 Section 3 because the Miranda
warnings weren't given; and as a result, it will also be inadmissible
pursuant to Section 38.23 because it was a legal –
THE COURT REPORTER: I'm sorry. A legal what?
MR. HUGHES: Illegally obtained.

1
It is impossible to tell which six minutes appellant is referring to after viewing the entire
body camera video.

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Thus, the error was not preserved because appellant did not specify which
part of the recording she believed was inadmissible. We overrule appellant’s
second point of error.
CONCLUSION

We affirm the trial court’s judgment.

/s/ Tracy Christopher
Chief Justice

Panel consists of Chief Justice Christopher, and Justices Bourliot and Hassan
Do Not Publish — Tex. R. App. P. 47.2(b).

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