Tyson Taylor v. The State of Texas--Appeal from 54th District Court of McLennan County

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IN THE

TENTH COURT OF APPEALS

 

No. 10-95-067-CR

 

TYSON TAYLOR,

 

Appellant

v.

 

THE STATE OF TEXAS,

 

Appellee

 

From the 54th District Court

McLennan County, Texas

Trial Court # 94-405-C

 

O P I N I O N

 

In a trial before a jury, the appellant, Tyson Taylor, was convicted on one count of credit card abuse, a third-degree felony. // He was alleged to have used the credit card on February 25, 1994, without the consent of the owner when he unsuccessfully attempted to purchase gasoline at a Fastime convenience store in Waco. Punishment was assessed by the jury at two years' incarceration in the Texas Department of Criminal Justice-Institutional Division. Taylor raises three points on appeal: (1) the trial court erred in refusing to issue an instruction on extraneous offenses; (2) the trial court erred in admitting into evidence probation department records because a proper foundation had not been laid; and (3) the trial court erred in refusing to suppress an in-court identification because it was based upon an unnecessarily suggestive pre-trial identification procedure. We affirm.

In his first point of error, Taylor argues the trial court erred in failing to give his requested jury charge on extraneous offenses. He wanted the charge so that the jury would only consider the extraneous offenses for an unspecified limited purpose. Taylor asserts that the following extraneous offenses were improperly made known to the jury: (1) he also used the card to purchase food at a Whataburger restaurant in Hillsboro; (2) he used the card to purchase merchandise from a Walmart retail store, also in Hillsboro; (3) he was on probation for a prior felony conviction for criminal mischief; (4) he violated the conditions of his probation when he misinformed his probation officer that he was employed full-time when he, in fact, was not; (5) he violated the conditions of his probation by leaving McLennan County without permission from his probation officer; (6) he violated the conditions of his probation by consuming alcoholic beverages; and (7) he consumed alcoholic beverages while under the age of 21.

Taylor failed to object to any of the above-listed extraneous offenses when they were admitted into evidence. When the State seeks to introduce evidence of extraneous offenses for a limited purpose, the defendant has the burden of objecting to the evidence and requesting a limiting instruction from the trial court. Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994), cert. denied, U.S. , 115 S. Ct. 1368 (1995). The defendant must make his objection at the time the extraneous offense evidence is first introduced at trial. Id. If the defendant fails to request a limiting instruction and that evidence is received without a proper limiting instruction, the extraneous offense evidence becomes part of the general evidence in the case and may be used as proof to the full extent of its rational persuasive power. Id. Therefore, because evidence of the seven extraneous offenses was admitted without objection from Taylor, the jury was able to consider such evidence for all purposes. Consequently, Taylor, because he failed to object and request a limiting instruction at the time it was admitted, was not entitled to a jury instruction at the close of trial. See id. at 878-79. Taylor's first point is overruled.

In his second point, Taylor complains the trial court erred in admitting into evidence two probation report forms, one from February 21, 1994, and the other from February 28, 1994, because a proper foundation had not been laid for their admission. Specifically, Taylor complains that the State failed to provide the court with any evidence from someone with personal knowledge about the information contained on the forms that such information was authentic. Tex. R. Crim. Evid. 901. Taylor relies primarily upon the Court of Criminal Appeals' opinion in Stapleton v. State, 868 S.W.2d 781 (Tex. Crim. App. 1993) (plurality opinion), in support of his argument.

At issue in Stapleton was an audio tape recording of a telephone call made by a woman to the Houston Police Department wherein she stated that someone from the police department should come to her apartment to seize some marijuana left there by the defendant. Id. at 782. The State argued that the recording was properly authenticated because it presented a witness who testified that he, personally, copied the audio cassette offered at trial from the main audio recording at the police department. Id. at 782-83. The State maintained that, because the tape had been properly authenticated by this witness, it was therefore admissible under the business records exception to the hearsay rule. Tex. R. Crim. Evid. 803(6). The Court found that this witness' testimony was insufficient to authenticate the recording because the witness had no personal knowledge about the statements that the woman made and were put on the recording. Stapleton, 868 S.W.2d at 784. The Court further stated that the woman's statements could not be considered reliable under Rule 803(6) because she was under no obligation to be truthful in what she stated to the Houston Police Department. Id. In other words, she had no "business duty" to be truthful to the Houston Police Department. Id.

This case differs fundamentally from Stapleton in that here, unlike in Stapleton, the out-of-court declarant had a duty to be truthful in his statements that were recorded on the report. Taylor was on probation, and he was required to make truthful statements to his probation officer concerning where he was residing and whether he was employed full-time. The duty that Taylor bore to make truthful statements to his probation officer provides the same indicia of reliability that make other business records admissible under Rule 803(6). See United States v. Bland, 961 F.2d 123, 127 (9th Cir.) (legal duty to truthfully complete a form necessary for the purchase of a firearm rendered the declarant's statements in the form admissible under Rule 803(6) so that authentication of the completed form was all that was necessary for the statements' admissibility), cert. denied, U.S. , 113 S. Ct. 170 (1992). Therefore, unlike in Stapleton, there was no requirement for the State to independently authenticate the statements Taylor made on the forms. All of the information contained on the reports was properly admitted once the reports, themselves, were authenticated. //

We note that our analysis of whether the probation reports were properly authenticated so that they would be admissible under Rule 803(6) reveals the wisdom in the Court of Criminal Appeals' adoption of Rule 803(8). Tex. R. Crim. Evid. 803(8). Rule 803(8) provides for the admissibility of records, reports, statements, or data compilations of public offices and agencies. Id. The basis for the rule is that government officials can be expected to be truthful as they perform their employment duties in completing official reports. Cole v. State, 839 S.W.2d 798, 803-04 (Tex. Crim. App. 1990) (quoting United States v. Quezada, 754 F.2d 1190, 1193-94 (5th Cir.), reh'g denied, 758 F.2d 651 (5th Cir. 1985)). Rule 803(8) would appear to be applicable in this case because the probation officer to whom Taylor reported, apparently George Ray, had an obligation as a probation officer to be truthful in completing the probation reports, and Taylor, as a probationer, had an obligation, as indicated above, to be truthful in the information he provided to Ray. Therefore, we conclude that the same result we reached in our discussion of Rule 803(6) would be reached under Rule 803(8) because, instead of relying upon a business duty for the reliability of the declarant's statements, we would rely upon a governmental duty to be truthful in completing official government reports. The consequence of either analysis is that the particular statements of the declarant need not be authenticated under Rule 901 to render the probation reports admissible; instead, the only requirement under Rule 901 would be to authenticate the report, itself. Taylor's second point is overruled.

In his third point Taylor asserts that the trial court erred in refusing to suppress an in-court identification of him by a witness because it was based upon an impermissibly suggestive pre-trial identification procedure. We disagree.

The record from the suppression hearing reveals that Jack L. Meyers, the owner of the credit card that Taylor tried to use on February 25, 1994, in late February or early March showed the Fastime clerk who waited on Taylor, Ollie Bradshaw, a single photograph of Taylor, who was pictured along with an older woman and a little girl. Bradshaw identified Taylor in the picture as the person who had attempted to use Meyers' credit card on February 25. Bradshaw subsequently identified Taylor as the assailant both at the suppression hearing and then at trial.

Taylor argues that the trial court erred in permitting Bradshaw's in-court identification of Taylor because the identification was obtained from an impermissibly suggestive pre-trial identification procedure. He maintains that Bradshaw was only able to identify Taylor in court because Bradshaw had identified Taylor from Meyers' photograph and that Bradshaw only identified Taylor in Meyers' photograph because the photograph of Taylor was the only picture of a suspect shown to him before trial.

Identification procedures that are unnecessarily suggestive violate a suspect's right to a fair trial under the Fourteenth Amendment to the United State Constitution. Manson v. Brathwaite, 432 U.S. 98, 113, 97 S. Ct. 2243, 2252 (1977). Identification procedures whereby suspects are viewed singly, while not per se unnecessarily suggestive, have been uniformly criticized for being unduly suggestive. Manson, 432 U.S. at 116, 97 S. Ct. at 2254; Writt v. State, 541 S.W.2d 424, 427 (Tex. Crim. App. 1976); see also Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). When an impermissibly suggestive pre-trial identification procedure is used, the witness' subsequent in-court identification of the defendant will not be allowed, unless the prosecution can somehow establish an independent basis for the reliability of the in-court identification of the defendant besides the pre-trial identification at issue. Manson, 432 U.S. at 113-14, 97 S. Ct. at 2252-53, Delk, 855 S.W.2d at 706. A totality-of-the-circumstances test is employed to determine whether the in-court identification is independently reliable. Manson, 432 U.S. at 113, 97 S. Ct. at 2252; Delk, 855 S.W.2d at 706. Five factors will assist the court in making this determination: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated at the pre-trial confrontation; and (5) the time between the crime and the confrontation. Manson, 432 U.S. at 114, 97 S. Ct. at 2253; Delk, 855 S.W.2d at 706.

At the pre-trial suppression hearing, Bradshaw testified on direct examination that on the night of the offense he was working the 10:00 p.m. to 7:00 a.m. shift. At around 1:30 a.m. three people came into the well-lit store and one of them tried to use a credit card to make a purchase. That person handed him the card from a close distance. Bradshaw testified that the person was wearing blue jeans, a dark-colored long-sleeve shirt, boots, and a cap. After leaving the credit card with Bradshaw, the person said that he was going to use the restroom and that he would be right back. When the person came back, he and Bradshaw had a conversation while his companions filled their truck with gasoline. During the conversation, the person said that he had just come from West, Texas. When Bradshaw then tried to charge the gasoline purchase onto the credit card account, he learned that the card was no longer valid. Bradshaw then told the person that he would have to keep the card, which he did. When Bradshaw told the person that he could not accept the card, the person said that he would retrieve some money from the truck and come back inside. The person, however, drove away from the store once he got to the truck and did not return. Bradshaw testified that the entire event occurred over the course of about fifteen minutes. Bradshaw stated that his identification of Taylor was based upon his observations of Taylor on the night of the offense and not from the photograph shown to him by Meyers.

On cross-examination, Bradshaw testified that after the offense he told Detective Michael Trantham of the Waco Police Department that the person who had tried to use the credit card was about five feet and eight or nine inches tall, that he weighed between 160 and 170 pounds, and that he was driving a rust-colored truck with oversized tires.

On cross-examination Detective Trantham testified that Bradshaw told him that he had made a positive identification of Taylor from Meyers' photograph. He further testified that Bradshaw initially told him that the person's truck was rust-colored but then later reported that it was cream-colored. Detective Trantham also testified that Taylor is approximately six foot-two. //

Taylor asserts that the discrepancies in Bradshaw's initial description of the assailant demonstrate the unreliability of the in-court identification. Therefore, he argues that the trial court erred in permitting Bradshaw to identify him at trial. Reviewing all the evidence adduced at the suppression hearing, we conclude that the trial court did not abuse its discretion in denying Taylor's motion to suppress. Spencer v. State, 466 S.W.2d 749, 752-53 (Tex. Crim. App. 1971) (trial court's ruling on motion to suppress in-court identification subject to abuse-of-discretion standard of review); Guerrero v. State, 838 S.W.2d 929, 931 (Tex. Crim. App. El Paso 1992, no pet.) (same). Bradshaw had approximately fifteen minutes to view Taylor while he was in the well-lit store. Bradshaw's level of attention was high: he and Taylor had a conversation while Taylor's companions filled their truck with gasoline, and Bradshaw gave a detailed description of the events that occurred that night and a detailed description of Taylor's attire. The time between the crime and the confrontation was short, only a few weeks. And Bradshaw's identification of Taylor in the photograph was positive. The only discrepancies in the record from the suppression hearing concerned Taylor's height and the color of the truck. Bradshaw testified that he was bad at guessing weights and heights, and the difference between a cream-colored truck and a rust-colored truck is not great. Considering the totality of the circumstances, we conclude the trial court did not err in overruling his motion to suppress the in-court identification. Taylor's third point is overruled.

The judgment is affirmed.

 

BOBBY L. CUMMINGS

Justice

 

Before Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed August 30, 1996

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