Mickey Dwayne Polk v. The State of Texas--Appeal from 97th District Court of Montague County

IN THE

TENTH COURT OF APPEALS

No. 10-99-102-CR

MICKEY DWAYNE POLK,

Appellant

v.

STATE OF TEXAS,

Appellee

From the 97th District Court

Montague County, Texas

Trial Court # 96-05-0041M-CR

CONCURRING OPINION

As additional explanation of why the admission of Exhibit 20 was not error, I respectfully submit this concurring opinion.

DOCUMENTARY EVIDENCE

Any time a document is offered into evidence there are at least three issues presented. These issues are authentication, best evidence and hearsay. The best evidence issue is addressed by the 1000 series of the rules of evidence which deal with the admissibility of copies, duplicate originals, etc. The authentication of the document, whether the document is what its proponent claims that it is, is addressed by the 900 series of the rules of evidence. Whether or not the document is inadmissible hearsay or is admissible as an exception to the hearsay rule is addressed by the 800 series of the rules of evidence. See Reed v. State, 811 S.W.2d 582, 585 FN 11 (Tex. Crim. App. 1991).

THE OBJECTION

In this case the defendant s objection was as follows:

Your Honor, the defense would object to the admission of Exhibit 20 on the basis that they appear to be business records out of the Department of Public Safety of the State of Texas, and they constitute hearsay evidence, and they were not filed with the Court 14 days prior to the date of this trial, and the proper affidavit is not attached that would overcome the fact that they are hearsay, and to admit them would violate the rules of evidence.

From the objection it is clear that the defendant was focused primarily on the complaint that the documents are hearsay. The reference (by description only) to the affidavit of rule 902(10) that may be filed so that business records may be admitted without the need for a sponsoring witness does not limit his objection to one of authentication. The 902(10) affidavit satisfies both the authentication and hearsay hurdles to admissibility. Rule 902(10) expressly states that Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) [hearsay exceptions] shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7)... The rule also requires that the documents and the necessary affidavit be on file at least fourteen days prior to the day trial commences. Thus, the essence of Polk s objection is that Exhibit 20 was unauthenticated hearsay.

THE STATE S RESPONSE

The state responded to the objection as follows:

Your Honor, I believe under the public records exception that these documents are admissible, and they have been authenticated by the department as per Rules of Evidence 902, subparagraph 4.

It appears the State was attempting to address both aspects of Polk s objection, hearsay and authentication. Without stating the basis of admitting the document the trial court overruled Polk s objection and admitted the exhibit.

AUTHENTICATION

With regards to authentication, rule 902 provides:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: . . .

(4) Certified Copies of Public Records. A copy of an official record ... or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, ... certified as correct by the custodian ... by certificate complying with paragraph (1), ... of this rule ....

Tex. R. Evid. 902(4).

Exhibit 20 was a compilation of title documents related to a motor vehicle. The cover page for Exhibit 20 was on Texas Department of Transportation, Vehicle Titles Registration Division letterhead. It bore an embossed seal of the Texas Department of Transportation and was signed by Rachel V. Lindley as "Custodian of Records, Texas Department of Transportation." She certified that the attached documents were a complete title history consisting of 23 pages, and that they were a true and correct copy of records on file with this department. This cover page, seal and attachments are in compliance with paragraph (1) of Rule 902. Tex. R. Evid. 902(1). Thus, as the majority notes, the title history is properly certified. As such the documents were self-authenticating under Rule 902(4) and did not need a witness to provide extrinsic evidence that the documents were what the state purported them to be. Tex. R. Evid. 902(4).

HEARSAY

However, having determined that extrinsic evidence of authenticity as a condition precedent to admissibility was not needed does not address the question of whether the documents were admissible over Polk s hearsay objection. To address this objection we first turn to the State s response. At trial the State contended the documents were admissible under the public records exception. The public records exception to the admissibility of hearsay is Rule 803(8) which provides as follows:

(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth:

(A) the activities of the office or agency;

(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or

(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;

unless the sources of information or other circumstances indicate lack of trustworthiness.

Tex. R. Evid. 803(8). There is nothing in this rule that would clearly apply to documents that have simply been filed with a public office or agency. Arguably, the copies of titles prepared by the Texas Department of Transportation, contained in the title history may reflect the activities of the office or agency.

But, the real answer to the question of admissibility over the hearsay objection is much more direct. Quiet simply, the documents are not hearsay. Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d).

If the title documents in Exhibit 20, were being offered by the State for the truth of the matter asserted therein, they would have no case against Polk. The State's entire case was premised on the fact that the title history documents were false. Specifically, the State was attempting to prove that the salvaged Suburban reflected in the title history, had not been repaired as reflected by the documents in the title history, but that the identifying numbers had been transferred by Polk to a stolen Suburban.

Since the documents were not being admitted for the truth of the matters asserted therein, the documents were not hearsay. Therefore, the trial court did not err in admitting the documents over Polk s hearsay objection.

TOM GRAY

Justice

Concurring opinion delivered and filed on December 15, 1999

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