Shakoofeh E. Rezaie v. The State of Texas--Appeal from 209th District Court of Harris County

Opinion issued November 29, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00649-CR

SHAKOOFEH E. REZAIE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 997317

CONCURRING OPINION

In her sole issue, appellant, Shakoofeh E. Rezaie, argues that the trial court erred in admitting a computer printout of a credit application into evidence as a business record because the supporting business record affidavit does not include a statement that the records were made by a person with personal knowledge. However, the computer printout is a business record, and the supporting business record affidavit substantially complies with Texas Rules of Evidence 803(6) and 902(10). See Tex. R. Evid 803(6), 902(10). Accordingly, I concur in the judgment of this Court.

A person commits the offense of fraudulent use or possession of identifying information if the person obtains, possesses, transfers, or uses identifying information of another person without the other person s consent and with intent to harm or defraud another. Act of May 29, 1999, 76th Leg., R.S., ch. 1159, 1, 1999 Tex. Gen. Laws 4064, 4064 (amended 2003 & 2007) (current version at Tex. Penal Code Ann. 32.51(b) (Vernon Supp. 2007)). Identifying information includes, among other things, an individual s name, social security number, date of birth, and government-issued identification number. Tex. Penal Code Ann. 32.51(a)(1)(A).

Here, in order to prove appellant guilty of the offense, the State had to show that appellant had, in fact, used the complainant s identifying information to obtain the Dillard s credit card. It did this by introducing State s Exhibit 2, the computer printout of the application for credit, attached to the business records affidavit of James Kucharski, the custodian of records for Dillard National Bank ( the Bank ). The computer printout showed that the complainant s name, social security number, and birth date had been used on the application along with appellant s apartment number.

The majority asserts that [t]he computer printout of the credit application was not offered to prove the truth of the statements within the application. Rather, it was offered to show that an application was made. It concludes, therefore, that [a]lthough the application is a record that is kept by the Bank, it is not hearsay. Again, however, the State needed to prove not just that an application was made, but, more specifically, that appellant actually used the complainant s identifying information in the application. See id. 32.51(b). The State did this by showing that appellant used appellant s own address, apartment number 9, instead of the complainant s address, apartment number 4, on the application. This directly connected appellant to the offense. Thus, the State used the credit application to prove the truth of at least one of the matters asserted in the application. See Tex. R. Evid. 801(c) ( Matter asserted includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant s belief as to the matter. ). The majority errs in concluding otherwise. Nevertheless, the trial court did not err in admitting the credit application into evidence as a business record. Appellant argues that the supporting affidavit of Kucharski is not in substantial compliance with the rules of evidence because it fails to state the records were made by a person with knowledge. See Tex. R. Evid 803(6), 902(10). In his affidavit, Kucharski states that the record was made at or near the time indicated in the documents and were transmitted by or to a person in Dillard National Bank. Although Kucharski did not expressly state that the credit application was transmitted by or to a person with knowledge, such knowledge can be inferred from the statement itself. Presumably, one has knowledge of what one is receiving and transmitting.

Although it is clearly the better practice to follow verbatim the sample affidavit supplied in rule 902(10)(b), an affidavit which substantially complies with the rule shall suffice. Tex. R. Evid. 902(10)(b). Moreover, the ultimate issue under rule 803(6) is the reliability of the record. See Harris v. State, 846 S.W.2d 960, 964 (Tex. App. Houston [1st Dist.] 1993, pet. ref d) (citing United States v. Hines, 564 F.2d 925 (10th Cir. 1977), aff d, 434 U.S. 1022, 98 S. Ct. 748 (1978). Here, the Bank had a great interest in assuring that the information obtained from those applying for credit correspond with its records. See id. Because the information in the computer printout possesses a high degree of trustworthiness and because Kucharski testified that it was kept in the regular course of the Bank s business, I would hold that it was admissible under rules 803(6) and 902(10)(b). See id.

Alternatively, appellant argues that portions of the document do not qualify as business records and, thus, contain inadmissible hearsay within hearsay. However, appellant did not object to the evidence on this basis in the trial court. Thus, she waived any error on this ground. See Tex. R. App. P. 33.1.

Accordingly, I concur in the judgment of this Court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

Justice Jennings, concurring.

Publish. Tex. R. App. P. 47.2(b).