No. 05-09-01005-CR
Opinion Filed June 24, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-19955-T.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
Opinion By Justice FILLMORE.
Following a bench trial, the trial court found appellant Donald Haskins guilty of theft of property valued at $1500 or more but less than $20,000, sentenced him to two years' confinement in state jail, probated for five years, and ordered him to pay $16,045.37 in restitution. In one issue, Haskins asserts the trial court erred by admitting a document containing hearsay and testimony about the document. We affirm the trial court's judgment.
Background
Haskins has not challenged the legal or factual sufficiency of the evidence to support the conviction. Therefore, we recite only those facts necessary to address his complaint on appeal.
Haskins worked as a manager at the North Hampton 7-Eleven store in DeSoto. Edward James, a field consultant for 7-Eleven, Incorporated, was responsible for conducting sales reviews of the North Hampton store. During a review, James discovered the top-selling item at the store during the previous month had been a coupon redeemable for a smoked turkey sandwich valued at $3.24. The number of times the coupon had been scanned exceeded the number of sandwiches in the store and caused James to suspect coupon fraud. 7-Eleven required that a coupon used at a store be retained by the store. After James asked Haskins to produce all the coupons scanned for the smoked turkey sandwich, Haskins gave James only one coupon. Due to the apparent fraud, James called for an internal investigation. During the investigation, James discovered Haskins failed to deposit the prior day's receipts of $16,045.37 into the bank. At trial, the State offered a document detailing the number of times the sandwich coupon had been scanned. James testified the document was generated by the in-store (ISP) computer. The ISP computer was integrated with the store's TIDEL system which operated the safe. According to James, the ISP computer was able to accurately and reliably record physical sales, cash sales receipts, the actual deposit for the day, "paid-outs," and any shortage. The information stored in the computer was automated, meaning that as sales occurred at the register, the computer automatically stored the information. David Gregory, a retired loss prevention specialist for 7-Eleven, testified that when the coupons were scanned, the amount was entered as a negative number and "backed off" sales. James testified that the data in the computer was secure from alteration or loss. Even during a power outage, the ISP computer kept the stored data intact. If the ISP computer was not functioning properly, it would read "off line." The information in the computer was entered as sales were made and could not be edited. Although an individual with the proper code could access the computer generated records, only Haskins or James, or any other individual above the level of field consultant, could add data or make entries into the computer system. Haskins's trial counsel objected the document was hearsay. The trial court overruled the objection and admitted the document into evidence. The trial court subsequently found Haskins guilty of the theft of the missing deposit. Analysis
In his sole issue, Haskins asserts the trial court erred by admitting the document into evidence, and allowing testimony about the contents of the document, because the document was hearsay and the State failed to lay the proper predicate to admit it as a business record. See Tex. R. Evid. 803(6). We review the admissibility of evidence for an abuse of discretion and will reverse only when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). "`Hearsay' is 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). A "statement" is (1) an oral or written verbal expression, or (2) nonverbal conduct of a person, if it is intended by him as a substitute for verbal expression. Tex. R. Evid. 801(a). The "declarant" is the person who makes the statement. Tex. R. Evid. 801(b). This Court has recognized a distinction between printouts of data entered into a computer by a person and printouts of data generated by the internal operations of the computer itself. Stevenson v. State, 920 S.W.2d 342, 343 (Tex. App.-Dallas 1996, no pet.). Computer self-generated data is not hearsay because there is no human declarant. James v. State, No. 05-99-01692-CR, 2000 WL 1665126, at *2 (Tex. App.-Dallas Nov. 7, 2000, pet. ref'd) (not designated for publication) ("A computer is not a declarant within the meaning of rule 801, and information generated by a computer is not hearsay."); Stevenson, 920 S.W.2d at 343 ("Because the intoxilyzer is not a declarant, the data it generates is not a statement and cannot be hearsay."); Miller v. State, 208 S.W.3d 554, 563 (Tex. App.-Austin 2006, pet. ref'd) ("This Court and other Texas courts of appeals have recognized that computer self-generated data is not hearsay because there is no human declarant."). However, when a computer printout is reporting data entered by a person, that data is hearsay. James, 2000 WL 1665126, at *2; see Stevenson, 920 S.W.2d at 343; see also Miller, 208 S.W.3d at 563. Here, the evidence showed the ISP computer automatically generated a record of sales, including coupon sales, and the amount of money deposited into the safe. James testified the data was secure from alteration and would be accurately stored even if the computer lost power. There was no evidence any person added data to the record or that the exhibit was anything other than computer self-generated data. See James, 2000 WL 1665126, at *2. Further, nothing in the record indicates the ISP computer was malfunctioning, unreliable, or inaccurate or was reading "offline." Based on the record, the trial court could reasonably conclude the computer printout was not hearsay. Accordingly, the State was not required to lay a predicate to admit the document as a business record. We conclude that the trial court did not abuse its discretion in admitting the computer printout into evidence or in allowing testimony concerning information contained in the document. We overrule Haskins's sole issue and affirm the trial court's judgment.