Marcus Alexander Baker v. The State of Texas--Appeal from 182nd District Court of Harris County

Opinion issued October 5, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00561-CR

__________

MARCUS ALEXANDER BAKER, Appellant

V.

STATE OF TEXAS, Appellees

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1040883

CORRECTED MEMORANDUM OPINION

The trial court, sua sponte, withdraws the Opinion and judgment issued on October 4, 2007 and issues this Opinion in its stead.

A jury convicted appellant, Marcus Alexander Baker, of theft, a state jail felony, and the trial court sentenced him to nine months' confinement in state jail. In two issues, appellant contends that the trial court committed harmful error in overruling his hearsay objection. We affirm the judgment of the trial court.

On September 4, 2005, a plasma television was stolen from an eighth floor suite in Reliant Park ("Reliant"). Appellant was charged in connection with the theft. At trial, appellant made a hearsay objection to the admission of a purchase requisition form indicating the cost of replacing the stolen television. Appellant argued that the authenticating witness, Cheyne Day, was not the custodian of the record. After appellant took Day on voir dire, the trial court overruled appellant's objection, and, following the jury's determination of his guilt, appellant filed this appeal.

In two issues, appellant argues that the trial court committed harmful error in overruling his hearsay objection to the admission of the purchase requisition form. Specifically, appellant argues that the State failed to lay the proper foundation to admit the purchase requisition form under the business records exception to the hearsay rule. We disagree.

Standard of Review

We review a trial court's evidentiary rulings for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 370 (Tex. Crim. App. 1990). A trial court must be given wide latitude in its decision to admit or exclude evidence. Harris v. State, 152 S.W.3d 786, 793 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd). As long as the trial court's evidentiary ruling was within the zone of reasonable disagreement, an appellate court may not disturb it. Montgomery, 810 S.W.2d at 391.

Analysis

Generally, hearsay, defined by the Texas Rules of Evidence 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," is not admissible. See Tex. R. Evid. 801(d). Rule 803(6), however, provides an exception rendering records of regularly conducted activity admissible hearsay. Tex. R. Evid. 803(6).

To invoke this exception, the offering party must show that the records were

(1) made in the regular course of business, (2) kept in the regular course of business, (3) made at or near the time of the event or condition recorded therein, and (4) made by, or from information transmitted by, a person with knowledge of the event or condition being recorded. See id. The offering party may make such a showing through the testimony or affidavit of the custodian of the records or another qualified witness. Id.; Williams v. State, 176 S.W.3d 476, 484 (Tex. App.--Houston [1st Dist.] 2004, no pet.). There is a distinction between the personal knowledge required of the creator of the record and that required for the authenticating witness. Rule 803(6) itself says that the record must be created "by, or from information transmitted by, a person with knowledge . . . ." Tex. R. Evid. 803(6). For authentication purposes, however, the authenticating witness does not have to have personal knowledge about the contents of the record, but must have personal knowledge about how the records are prepared. Williams, 176 S.W.3d at 484.

Here, Day testified that he was the custodian of the purchase requisition form and that Reliant authorized him "to keep and control" such forms. He also testified that the form was made by or in conjunction with his company, it was made in the regular course of business, the form was kept as a part of his job with the company, and the form was made at or near the time of the events in question. Day explained that such forms were created to inform the finance department of the price of a needed item. On voir dire, Day indicated that he is the head of security, not the person who actually purchases replacement televisions, and he did not know exactly when the purchase requisition form was produced. Such testimony, however, does not impinge on Day's personal knowledge of how these records are created, but just when this specific record was created. We hold that, because Day's testimony established the proper predicate for admission of the purchase requisition form as a record of regularly conducted activity, the trial court did not err in overruling appellant's hearsay objection.

Accordingly, we overrule appellant's first issue. Because we have determined that the trial court did not abuse its discretion in overruling appellant's hearsay objection, we need not address appellant's contention that the trial court's evidentiary ruling was harmful.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).