Elias Andrew Puebla v. the State of Texas

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In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-24-00166-CR
     ___________________________

  ELIAS ANDREW PUEBLA, Appellant

                      V.

          THE STATE OF TEXAS


  On Appeal from the 271st District Court
           Jack County, Texas
          Trial Court No. 5100


 Before Sudderth, C.J.; Bassel and Walker, JJ.
  Memorandum Opinion by Justice Bassel
                            MEMORANDUM OPINION

                                I. INTRODUCTION

         A jury found Elias Andrew Puebla guilty of the offense of unlawful possession

of a firearm by a felon and assessed his punishment at sixteen years’ confinement. See
Tex. Penal Code Ann. § 46.04
(a). Puebla now appeals the conviction, raising issues as

to the authentication of one exhibit, the admissibility of his statements recorded in

another exhibit, and his right to confront witnesses whose statements were recorded in

both exhibits. Because we overrule each issue, we will affirm the judgment of the trial

court.

                                 II. BACKGROUND

         In October 2021, Texas Game Warden Charles Tweedle Jr. responded to a

midnight telephone call from a property owner in north Jack County reporting gunshots

and possible illegal hunting. Tweedle drove to the area and parked his vehicle in a high

vantage from which he knew he could see and hear for some distance.

         After waiting there for about two hours, Tweedle heard a gunshot nearby. He

drove toward the sound and, within minutes, came upon a pickup truck with its lights

off that was stopped on the side of an unpaved county road. He saw two men in the

cab and another man with a rifle in the bed of the truck. Tweedle activated his

emergency lights, identified himself, told the men to stay in the truck, started recording

with his body-worn camera, and exited his vehicle. The driver of the truck also exited

and walked toward Tweedle.

                                            2
       Tweedle identified himself, as did the driver, Barry Bronaugh. Tweedle also

spoke to the man in the back of the truck, who identified himself as Michael Rojas.

Tweedle inspected the bed of the truck and secured the rifle by moving it to the hood

of his vehicle, away from the truck. In securing the rifle, he determined that it had a

round jammed in the breech.

       Tweedle then spoke with Puebla, who was sitting in the front passenger seat of

the truck. Tweedle asked Puebla if he had a rifle. Puebla answered in the affirmative

and handed it to him. Tweedle asked Puebla if he had fired the rifle that evening, and

Puebla answered in the affirmative but denied firing from the roadway. Also in the

back seat of the cab of the truck was Rojas’s son, asleep.

       Tweedle determined that Bronaugh had been drinking. A horizontal gaze

nystagmus test indicated that Bronaugh was, according to Tweedle, “right there” or

“just over” as to the level of his intoxication. Tweedle determined that he would issue

the men citations for hunting on a public roadway and release them, having Rojas drive

due to Bronaugh’s likely intoxication.

       Before releasing them, Tweedle contacted county dispatch with the identities of

the three men. Dispatch informed him that Rojas was a convicted felon and indicated

that Puebla might be, although the information was unclear. Tweedle arrested Rojas

for illegal possession of a firearm by a felon.

       A Jack County Sheriff’s deputy arrived to assist Tweedle. In preparing to have

Puebla drive instead of Rojas, Tweedle asked Puebla if he had ever been convicted of a

                                             3
felony. Puebla confirmed that he had, so Tweedle instructed the deputy to take him

into custody for illegal possession of a firearm by a felon. The deputy transported both

Rojas and Puebla to the county jail.

       The rifle that Puebla provided to Tweedle was equipped with a thermal scope

that recorded audio and video. After contacting the rifle’s owner and with his consent,

Tweedle later downloaded from the scope a recording made on the day of the arrest.

The thermal-scope video showed the view from the scope and the conversation near it

as the rifle was used to shoot at wild hogs. In reviewing the video, Tweedle identified

the voices of Puebla, Bronaugh, and Rojas and determined that Puebla was the person

holding and firing the rifle.

       A grand jury indicted Puebla for unlawful possession of a firearm by a felon. See

id.1 At trial, the trial court admitted Tweedle’s body-worn-camera video of the stop and

the thermal-scope video. Tweedle testified as to the contents of the videos and

recounted the events of the evening. This appeal followed Puebla’s conviction and

sentence.

                                  III. DISCUSSION

       Puebla presents three issues on appeal. In his first issue, he argues that the trial

court abused its discretion in admitting the thermal-scope video. In his second issue,


       Unlawful possession of a firearm by a felon is a felony of the third degree. Tex.
       1

Penal Code Ann. § 46.04(e). Because Puebla pled true to allegations of prior felony
convictions, the offense was enhanced to a felony of the second degree. Id. § 12.42(a).


                                            4
he argues that the trial court erred by admitting the body-cam video of the stop in

violation of his Fifth Amendment right against self-incrimination. In his third issue, he

argues that the trial court erred by admitting both videos in violation of his Sixth

Amendment right to confront witnesses against him.

A. Preservation of Error as to the Thermal-Scope Video
      Puebla argues that the State improperly authenticated the thermal-scope video

because the State did not establish the date it was made and failed to establish that

Tweedle was an expert in voice identification, was “connected” with those speaking in

the recording, or had “the personal relationship to fully be able to recognize the voices

in the video.” 2 The State argues that Puebla did not preserve error as to the thermal-

scope video and so forfeited the issue on appeal. We agree.

      To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion sufficiently stating the specific grounds, if

not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1);

Montelongo v. State,
623 S.W.3d 819
, 822 (Tex. Crim. App. 2021). Further, the party must

obtain an express or implicit adverse trial-court ruling or object to the trial court’s

refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State,
595 S.W.3d 216
, 223 (Tex.

Crim. App. 2020). Because it is a systemic requirement, this court should independently




      2
       Puebla also alleges the exhibit was improperly authenticated because it contains
only audio, not video. However, the recording contains both video and audio.

                                            5
review error preservation, and we have a duty to ensure that a claim is properly

preserved in the trial court before we address its merits. Dixon, 595 S.W.3d at 223.

       At trial, the State offered the thermal-scope video into evidence. Puebla stated

that he had no objection to the video and the court admitted it into evidence. The State

played the recording for the jury. Puebla did not object to its publication.

       Because Puebla presented no request, objection, or motion to the trial court, the

issue was not preserved for review. Id.

       Puebla’s reply brief addresses the issue of preservation in a single sentence.

Without citation to authority, he states that he “would supply that trial counsel was

ineffective for failing to object to this meritorious issue and the issue presented is so

grave, that even under a fundamental error standard, Appellant prevails.” He addresses

neither ineffective assistance of counsel nor fundamental error in the remainder of his

reply. Because the reply does not contain a “clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record” as to

these arguments, they are also not properly before us for review. Tex. R. App. P. 38.1(i);

see Gonzalez v. State,
616 S.W.3d 585
, 587 (Tex. Crim. App. 2020); see also Barrios v. State,
27 S.W.3d 313, 322
(Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (“Pointing out

the absence of an appellant’s argument does not raise the argument or entitle appellant

to assert that argument for the first time in his reply brief.”).

       Because Puebla did not put the alleged error before this court for review, we

overrule his first issue.

                                             6
B.       The Body-Cam Video and Puebla’s Fifth Amendment Rights
         In his second issue, Puebla argues that the trial court violated his Fifth

Amendment right against self-incrimination when it overruled his trial objection and

admitted Tweedle’s body-cam video because Tweedle did not warn him of his rights

before he made incriminating statements. See Miranda v. Arizona,
384 U.S. 436, 444
,
86

S. Ct. 1602, 1612
(1966).      Because the video was not the product of custodial

interrogation, the duty to warn under Miranda did not apply so we will overrule this

issue.

         1. Standard of Review
         We apply the same bifurcated standard of review to a trial court’s ruling on a

motion to suppress evidence as to a trial objection based on an alleged Fifth

Amendment violation, as was the case here. State v. Martinez,
570 S.W.3d 278, 281
(Tex.

Crim. App. 2019); see Ogg v. State, No. 14-18-01028-CR,
2020 WL 1855286
, at *3 (Tex.

App.—Houston [14th Dist.] Apr. 14, 2020, no pet.) (mem. op., not designated for

publication). Because the trial judge is the sole trier of fact and judge of the witnesses’

credibility and the weight to be given their testimony, Wiede v. State,
214 S.W.3d 17
, 24–

25 (Tex. Crim. App. 2007), we defer almost totally to a trial court’s rulings on questions

of historical fact and application-of-law-to-fact questions that turn on evaluating

credibility and demeanor, but we review de novo application-of-law-to-fact questions

that do not turn on credibility and demeanor, Martinez,
570 S.W.3d at 281
.




                                            7
       When reviewing a trial court’s ruling on a motion to suppress, we must view the

evidence in the light most favorable to the trial court’s ruling. Wiede,
214 S.W.3d at 24
;

State v. Kelly,
204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When a trial court denies a

motion to suppress and does not enter findings of fact, we assume the trial court made

implicit findings of fact that support its ruling as long as those findings are supported

by the record. Herrera v. State,
241 S.W.3d 520, 527
(Tex. Crim. App. 2007). The party

that prevailed in the trial court is afforded the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn from that evidence. State v. Garcia-Cantu,
253 S.W.3d 236, 241
(Tex. Crim. App. 2008). We then review the trial court’s legal

ruling de novo unless its explicit fact findings that are supported by the record are also

dispositive of the legal ruling. Kelly,
204 S.W.3d at 818
.

       2. Applicable Law
       An accused’s statements produced by custodial interrogation are inadmissible as

evidence unless the accused is first warned of his rights under Miranda. Miranda,
384

U.S. at 444
,
86 S. Ct. at 1612
; see Tex. Code Crim. Proc. Ann. art. 38.22. “Custodial

interrogation” refers to “questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom of action in

any significant way.” Miranda,
384 U.S. at 444
,
86 S. Ct. at 1612
. Thus, an officer’s

obligation to give the warnings is triggered only when a person is in custody. Stansbury

v. California,
511 U.S. 318, 322
,
114 S. Ct. 1526, 1528
(1994).




                                             8
      Courts determine whether a person is in custody by examining all the

circumstances surrounding the interrogation and resolving whether law enforcement

formally arrested the person or, alternatively, restrained the person’s freedom of

movement to the degree associated with a formal arrest.
Id.,
114 S. Ct. at 1529
. The

ultimate inquiry is whether, given the circumstances surrounding the interrogation, a

reasonable person would have felt that he was not free to leave. Wexler v. State,
625

S.W.3d 162
, 167 (Tex. Crim. App. 2021) (first citing Stansbury,
511 U.S. at 322
,
114 S. Ct.

at 1528
; and then citing Dowthitt v. State,
931 S.W.2d 244, 254
(Tex. Crim. App. 1996)).

The “reasonable person” standard presupposes an innocent person.
Id.
Four general situations may constitute custody:

       (1) the suspect is physically deprived of [his] freedom of action in any
       significant way, (2) a law enforcement officer tells the suspect that [he]
       cannot leave, (3) law enforcement officers create a situation that would
       lead a reasonable person to believe [his] freedom of movement has been
       significantly restricted, or (4) there is probable cause to arrest, and law
       enforcement officers do not tell the suspect that [he] is free to leave.
Id.
at 167–68 (citing Dowthitt,
931 S.W.2d at 255
). Regarding the first three situations,

the restriction upon freedom of movement must amount to the degree associated with

an arrest, not merely an investigative detention. Id. at 168. Thus, a driver who has been

temporarily detained pursuant to a traffic stop is not in custody for purposes of Miranda.

Campbell v. State,
325 S.W.3d 223, 233
(Tex. App.—Fort Worth 2010, no pet.) (citing

Berkemer v. McCarty,
468 U.S. 420, 439
,
104 S. Ct. 3138, 3150
(1984)).




                                            9
       Regarding the fourth situation, the officer’s knowledge of probable cause must

be manifested to the suspect. Wexler, 625 S.W.3d at 168. But this does not automatically

establish custody; custody is established only if the manifestation of probable cause,

combined with other circumstances, would lead a reasonable person to believe that he

is under restraint to a degree associated with an arrest. Id.; Dowthitt,
931 S.W.2d at 255
.

       The determination of whether a suspect is in custody must be based entirely on

the objective circumstances surrounding the questioning. Dowthitt,
931 S.W.2d at 254
.

Law enforcement’s subjective intent and the suspect’s subjective belief are irrelevant

except to the extent manifested in the words or actions of law enforcement officials.

Id.

       3. Application to the body-cam video
       The defendant bears the initial burden to establish that his statements were the

product of a custodial interrogation. Wexler, 625 S.W.3d at 168. Puebla argues that the

stop was custodial because Tweedle believed a Class C misdemeanor, “at a minimum,”

had been committed when he approached the truck and because Tweedle instructed

the three men to remain in the vehicle. Puebla makes the conclusory statement that he

was “physically deprived of his freedom to leave.” Puebla cites no examples of physical

restraint in the record.

       In this case, neither party requested—and the judge did not enter—findings of

fact related to the overruling of Puebla’s objection to the introduction of the body-cam

video, so we view the evidence in the light most favorable to the ruling and assume the

                                            10
trial court made implicit findings of fact supported by the record. Herrera,
241 S.W.3d

at 527
.

      Puebla was not detained during Tweedle’s initial investigation. Tweedle activated

his emergency lights and approached the truck with the intent to investigate suspected

criminal offenses. He had heard a gunshot from the direction of the vehicle and had

come across Bronaugh’s truck with its lights off and with Rojas riding in the back with

a rifle. When he first approached the truck, Tweedle was investigating the potential

criminal act of hunting from a roadway, but he did not have probable cause to arrest

anyone. See Berkemer,
468 U.S. at 442
,
104 S. Ct. at 3151
; Campbell,
325 S.W.3d at 235
;

Arthur v. State,
216 S.W.3d 50, 57
(Tex. App.—Fort Worth 2007, no pet.). During this

initial phase of the investigation, Puebla was not in custody.

      Tweedle continued to investigate. Tweedle observed one rifle in the bed of the

truck with Rojas and one in the cab of the truck that Puebla admitted having fired that

evening. Tweedle secured the weapons away from the truck but did not handcuff or

otherwise physically restrain Puebla during the investigation. Puebla has offered no

facts to suggest that during the investigatory stop he was physically deprived of his

freedom in any significant way and so has not shown that he was subject to a custodial

interrogation. See Campbell,
325 S.W.3d at 233
. Puebla was also not in custody during

this phase of the investigation.

      Puebla argues that Tweedle told him that he was not free to leave and thereby

restricted his freedom of movement to the degree associated with a formal arrest. When

                                           11
he first encountered the vehicle, Tweedle identified himself as a State Game Warden

and told the men to stay where they were in the truck, where he could see them.

Tweedle did not tell the men that they were under arrest and did not draw his weapon

or otherwise demonstrate force with the instruction. Although Tweedle’s instruction

may have restricted the men’s freedom of movement, a person under detention—as

opposed to arrest—may have his freedom of movement restricted to a lesser degree.

Wexler, 625 S.W.3d at 166. Tweedle’s instruction to remain in the truck did not restrict

Puebla’s movement to the degree associated with a formal arrest. See id.

      Further, during the investigation but before discovering that Puebla had been

convicted of a felony, Tweedle informed Puebla that he would receive a citation and be

released to drive the truck. Thus, before Puebla informed Tweedle of his prior felony

conviction, Tweedle had communicated a clear intent to release him. See Bartlett v. State,
249 S.W.3d 658, 670
(Tex. App.—Austin 2008, pet. ref’d) (citing Stansbury,
511 U.S. at

325
,
114 S. Ct. at 1530
).

      Puebla also argues that the circumstances constituted an arrest because Tweedle

believed Puebla was not free to leave during the questioning. But Tweedle’s subjective

intent is not determinative, and he did not communicate or manifest his subjective

belief. See Herrera, 241 S.W.3d at 525–26; Dowthitt,
931 S.W.2d at 254
; Majoro v. State,

Nos. 02-15-00256-CR, 02-15-00390-CR, 02-15-00391-CR,
2016 WL 3364800
, at *7

(Tex. App.—Fort Worth June 16, 2016, pet. ref’d) (mem. op., not designated for

publication).

                                           12
         With respect to Puebla, we hold that the encounter did not constitute custody

for purposes of Miranda until Tweedle arrested Puebla for unlawful possession of a

firearm. See Berkemer,
468 U.S. at 442
,
104 S. Ct. at 3151
; State v. Stevenson,
958 S.W.2d

824, 829
(Tex. Crim. App. 1997). But after his arrest, Puebla made no further

statements that were recorded on the video or recounted in later testimony.

         Based on the objective circumstances, we conclude that Puebla’s statements

heard on Tweedle’s body-cam video were not the product of a custodial interrogation

but rather the result of an investigative detention, and so they did not trigger the

requirement that Tweedle inform Puebla of his rights. Therefore, the video was not

subject to suppression under Miranda, and the trial court did not err by overruling

Puebla’s objection. See Tex. Code Crim. Proc. Ann. art. 38.22; Cox v. State, No. 02-24-

00045-CR,
2025 WL 387811
, at *4 (Tex. App.—Fort Worth Jan. 30, 2025, pet. ref’d)

(mem. op., not designated for publication). Accordingly, we overrule Puebla’s second

issue.

C.       Both Videos and Puebla’s Sixth Amendment Right to Confrontation
         In his third issue, Puebla argues that the trial court erred by admitting the

body-worn camera and thermal-scope videos in violation of his Sixth Amendment right

to confront witnesses against him. Thus, he complains about the trial court’s admission

of Branaugh’s and Rojas’s statements on them because neither man testified at trial.

Because Puebla did not preserve error as to the thermal-scope video and because

admission of the body-cam video was harmless, we will overrule this issue.

                                           13
       1. Applicable Law
       The Sixth Amendment’s Confrontation Clause provides, “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.” U.S. Const. amend. VI. In essence, that clause bars admission of

testimonial statements of a witness who does not appear at trial unless the witness is

unavailable to testify and the defendant has had a prior opportunity for cross-

examination. See Davis v. Washington,
547 U.S. 813, 821
,
126 S. Ct. 2266, 2273
(2006)

(citing Crawford v. Washington,
541 U.S. 36
, 53–54,
124 S. Ct. 1354, 1365
(2004)).

       There is no single, well-established definition of what constitutes a “testimonial”

statement under this standard. Martinez v. State, No. 02-18-00447-CR,
2019 WL

4678426
, at *3 (Tex. App.—Fort Worth Sept. 26, 2019, pet. ref’d) (mem. op., not

designated for publication) (citing Crawford,
541 U.S. at 68
,
124 S. Ct. at 1374
). The

Confrontation Clause and the core of its application “applies to ‘witnesses’ against the

accused—in other words, those who ‘bear testimony.’”
Id.
(citing Crawford,
541 U.S. at

51
,
124 S. Ct. at 1364
).

       In essence, the nomenclature “testimonial” is descriptive. Id. at *4. A statement

is testimonial when it packages a statement relevant to the issues in a criminal trial for

delivery as testimony at that later trial:

       “[T]estimonial statements are those ‘that were made under circumstances
       which would lead an objective witness reasonably to believe that the
       statement would be available for use at a later trial.’” Burch v. State,
401
       S.W.3d 634, 636
(Tex. Crim. App. 2013). In determining whether a
       statement is testimonial, we review the objective purpose of the statement,

                                             14
      not the declarant’s expectations. Coronado v. State,
351 S.W.3d 315, 324
(Tex. Crim. App. 2011).          Statements are testimonial when the
      circumstances objectively indicate that the primary purpose of the
      interrogation is to establish or prove past events potentially relevant to
      later criminal prosecution.
Id.
Florez v. State, No. 02-16-00195-CR,
2017 WL 2471095
, at *5 (Tex. App.—Fort Worth

June 8, 2017, no pet.) (mem. op., not designated for publication).

      One factor that determines whether an objective observer could conclude that a

statement is being packaged for use at a trial is to whom the statement is made: a

statement made to non-law-enforcement personnel is less likely to be considered

testimonial. Wear v. State, No. 02-16-00170-CR,
2017 WL 929529
, at *3 (Tex. App.—

Fort Worth Mar. 9, 2017, no pet.) (mem. op., not designated for publication) (citing and

quoting Ohio v. Clark,
576 U.S. 237
, 245–47,
135 S. Ct. 2173
, 2180–82 (2015)).

      If the challenged statement is testimonial, the denial of physical, face-to-face

confrontation is reviewed for harm. Coy v. Iowa,
487 U.S. 1012, 1021
,
108 S. Ct. 2798,

2803
(1988); see Chapman v. California,
386 U.S. 18, 23
,
87 S. Ct. 824, 828
(1967).

Constitutional error is harmful unless a reviewing court determines beyond a reasonable

doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a). The

State has the burden, as beneficiary of the error, to prove that the error is harmless

beyond a reasonable doubt. Haggard v. State,
612 S.W.3d 318
, 328 (Tex. Crim. App.

2020). If we are unable to conclude beyond a reasonable doubt that the error did not

contribute to the conviction, we must reverse and order a new trial. Langham v. State,
305 S.W.3d 568, 582
(Tex. Crim. App. 2010).

                                          15
      In the context of the denial of physical confrontation, the harm analysis “cannot

include consideration of whether the witness’[s] testimony would have been unchanged,

or the jury’s assessment unaltered, had there been confrontation” because “such an

inquiry would obviously involve pure speculation.” Coy, 487 U.S. at 1021–22,
108 S. Ct.

at 2803
. Instead, harm must be determined based on “the remaining evidence.”
Id. at

1022
,
108 S. Ct. at 2803
.

      While our determination should consider “any circumstance apparent in the

record that logically informs the harm issue,” a number of factors can aid our analysis:

(1) importance of the witnesses’ testimony to the prosecution’s case, (2) whether the

testimony was cumulative, (3) the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, and (4) the overall

strength of the prosecution’s case. Haggard, 612 S.W.3d at 329; Davis v. State,
203 S.W.3d

845, 852
(Tex. Crim. App. 2006).

      2. Preservation and custodial nature of the statements on the thermal-
         scope video
      As we have already noted, Puebla did not object to the admission of the thermal-

scope video. Confrontation Clause claims are subject to preservation requirements.

Davis v. State,
313 S.W.3d 317, 347
(Tex. Crim. App. 2010). Even if he had preserved

error, though, the thermal-scope video was clearly not “testimonial” under the Sixth

Amendment because it did not contain any statements made to law enforcement

personnel and was not made in a situation that would indicate it was intended to create



                                           16
a court record. See Burch,
401 S.W.3d at 636
. Because the scope video is not testimonial,

even had Puebla preserved the error for our review, its admission did not violate

Puebla’s right to confrontation.

       3. Custodial nature of the statements on the body-cam video
       Tweedle’s body-cam video was made during his investigation of a suspected

criminal offense. Although Puebla was not subject to custodial arrest for Fifth

Amendment purposes, the video was clearly created as part of an adversarial

investigation of suspected criminal activity, and a reasonable declarant would recognize

that his statements could be used in future criminal prosecutions, indicating that the

statements on it are testimonial in nature. See Haggard, 612 S.W.3d at 329; Fischer v. State,
252 S.W.3d 375
, 382–83 (Tex. Crim. App. 2008); see also Zynda v. State, No. 2-06-426-

CR,
2007 WL 2152658
, at *4 (Tex. App.—Fort Worth July 26, 2007, no pet.) (mem.

op., not designated for publication) (comparing Fifth Amendment and Sixth

Amendment standards of applicability). Because the statements made by Bronaugh and

Rojas in the body-cam video were testimonial, we must analyze whether admission of

the video was harmless. See Crawford,
541 U.S. at 68
,
124 S. Ct. at 1374
.

       4. Harm analysis
       In the video, neither Bronaugh nor Rojas discussed Puebla’s criminal record.

Although Bronaugh told Tweedle that the group had been hunting that evening and

that a shot was fired, neither Bronaugh nor Rojas informed Tweedle that Puebla had

been in possession of a firearm or had been convicted of a felony. Bronaugh’s and


                                             17
Rojas’s statements therefore were not determinative of the elements of the offense for

which Puebla was actually charged, illegal possession of a firearm by a felon.

Bronaugh’s and Rojas’s statements in the video were of low importance to the

prosecution’s case. See Haggard, 612 S.W.3d at 329.

       Although Puebla acknowledged possessing the rifle and was holding it in the

body-cam video, Tweedle also testified that he saw Puebla holding the rifle and that

Puebla said he had been firing the rifle earlier. Tweedle first received notice that Puebla

may have been convicted of a felony from the county dispatch, and only then did Puebla

confirm that he had been. The video, as relevant to the prosecution’s case, was

cumulative of Tweedle’s testimony. See id.

       The thermal-scope video also corroborated Puebla’s possession of a firearm

earlier that evening. Although the recording captured statements from all three men,

Tweedle testified that he determined that Puebla was holding the rifle when it was made.

The recording captured the sound of several gunshots and discussion among the three

men. Thus, to the extent that the body-cam video contains testimonial statements by

Bronaugh and Rojas indicating Puebla had been in possession of a firearm, they are

cumulative of other evidence in the record, including the thermal-scope video and

Tweedle’s testimony. See id.

       Because Bronaugh’s and Rojas’s statements recorded in the video were of low

importance to the prosecution’s case, were cumulative of other evidence in the record,

and were corroborated by other evidence as to material points, and because the

                                            18
prosecution’s case was strong as to the elements of the offense alleged, it appears

beyond a reasonable doubt that the video did not contribute to the verdict obtained, so

the trial court’s admission of the out-of-court testimonial statements of Bronaugh and

Rojas on Tweedle’s body-cam video was harmless. See Clay v. State,
240 S.W.3d 895,

904
(Tex. Crim. App. 2007). Accordingly, we overrule Puebla’s third issue.

                                IV. CONCLUSION

       Having overruled each of Puebla’s three issues, we affirm the judgment of the

trial court.

                                                     /s/ Dabney Bassel

                                                     Dabney Bassel
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: July 17, 2025




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