Opinion
No. 14-07-00756-CR
Memorandum Majority and Concurring Opinions filed February 3, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause No. 1128676.
MEMORANDUM MAJORITY OPINION
A jury found appellant, Derrick Dewayne Henderson, guilty of aggravated kidnapping and assessed punishment at thirty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. § 20.04 (Vernon 2003). In five issues, appellant argues (1) the evidence is legally insufficient to support his conviction, (2) the evidence is factually insufficient to support his conviction, (3) the trial court's allegedly improper comments violated his due process rights, (4) the trial court erred in admitting improperly authenticated business records and improper hearsay testimony, and (5) he did not waive his first four issues by taking the stand in the punishment phase and confessing to the crime. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The plan to attack complainant, Michael Duke, originated in March, 2006. The plan was to go to Houston to intimidate Mr. Duke, who allegedly owed money to Ryan Hudnall's brother, Rodney Hudnall. During this effort to intimidate Mr. Duke, appellant was to be accompanied by Ryan Hudnall and Clayton Aaron Adams. The men planned to dress as law enforcement officers and "arrest" Mr. Duke at gunpoint. On March 31, 2006, the three men left for Houston from Kansas City, Missouri. On the trip to Houston, they were stopped for a traffic violation in Big Cabin, Oklahoma. During this traffic stop, appellant was identified as driving the vehicle through eyewitness testimony and police videotape. Because of a probation violation, Clayton Adams abandoned the plan and returned to Kansas City. On the morning of April 1, 2006, Ryan Hudnall rented a vehicle from Hertz in Houston, Texas. That evening, appellant stayed at a Houston area motel. On April 2, 2006, two armed men dressed as law enforcement officers, wearing masks, approached Mr. Duke in the parking lot of his place of work, an electronics store in Pasadena, Texas. The two men ordered Mr. Duke on to the ground to place him under arrest. The men tied Mr. Duke's hands behind his back and proceeded to force him into the back of their vehicle. Mr. Duke resisted because of the men's failure to show identification, inciting the men to strike Mr. Duke. During the struggle, Thomas Moore, a witness, and John Eilers, the store's security officer, arrived at the scene. The assailants then dropped Mr. Duke on the ground, got in their vehicle, and rapidly drove away. Mr. Duke suffered many injuries as a result of the attack. Officer Eilers observed the license plate number of the assailants' vehicle before it drove away, and broadcast the car's description and license plate number over the police radio. The Pasadena Police Department discovered a red Ford Taurus missing a license plate in a parking lot near the scene of the offense. The Taurus' missing license plate matched the one Officer Eilers reported on the assailants' vehicle. Additionally, the assailants' vehicle matched the description of the vehicle rented by Ryan Hudnall the prior day. Ryan Hudnall returned the rented vehicle to Hertz on April 2, 2006, the day following the attack on Michael Duke. The detective assigned to the case was Detective Isaac Villarreal. Appellant was first identified as a potential suspect when Detective Villarreal spoke with Ryan Hudnall's estranged wife. During a search of Ryan Hudnall's home, the police seized a cellular telephone. After examining Ryan Hudnall's cellular telephone, Detective Villarreal found the appellant's name and phone number stored in the phone. Additionally, after examining Mr. Hudnall's phone records, investigators were able to trace Mr. Hudnall's phone from Kansas City two days prior to the offense, to Big Cabin, Oklahoma the day of the traffic stop, to Houston, Texas on the morning of April 1, 2006. The phone was used near the scene of the offense close to the time of the attack, and then used again in the Kansas City area on April 3, 2006. Detective Villarreal was also able to determine appellant stayed at a Houston area motel the evening of April 1, 2006 by interviewing the motel's manager, who identified appellant in a photo array, and by examining the motel's records, which revealed that appellant checked into the motel using his real name. After returning to Kansas City, appellant spoke to Clayton Adams, who asked how their plan had worked. According to Clayton Adams's testimony, appellant responded that things had not gone according to their plan. In addition, Detective Villarreal determined appellant matched the general description the witnesses gave of one of the assailants at the scene of the offense. Appellant was subsequently charged with felony aggravated kidnapping, and in one enhancement paragraph, was alleged to have previously committed aggravated battery. The jury found appellant guilty of aggravated kidnapping and found the enhancement paragraph to be true. Additionally, the jury made a finding that appellant did not voluntarily release the complainant in a safe place. The jury assessed appellant's punishment at thirty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice.DISCUSSION
A. Is the evidence legally and factually sufficient? In appellant's third and fourth issues, he argues the evidence is legally and factually insufficient to support the verdict. 1. Standard of Review In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness' testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet ref'd). In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730-31 (Tex.Crim.App. 2005). The evidence may be factually insufficient in two ways. Id. at 731. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). 2. Analysis A person commits the offense of aggravated kidnapping if he intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense. Tex. Penal Code Ann. § 20.04(b). The evidence presented established appellant participated in a plan with Ryan Hudnall to travel to Houston, impersonate law enforcement officers, and intimidate the complainant. Additional evidence showed appellant traveled to Houston, was stopped along the way in Oklahoma for a traffic citation, and registered as a guest at a motel in the Houston area the day prior to the attack. Furthermore, Ryan Hudnall rented a vehicle which matched the description of the vehicle identified at the scene of the offense, the two men impersonating police officers who abducted the complainant at gunpoint matched the general description of appellant and Ryan Hudnall. Also, Ryan Hudnall's cellular telephone was tracked from Kansas City, Missouri to Houston, Texas prior to the offense, and then tracked to the scene of the offense on the day of the attack, and then back to Kansas City the following day. Appellant argues the evidence indicating he was the perpetrator is insufficient to support the verdict because it is based only on circumstantial evidence and the testimony of an unnamed convicted felon. Appellant's argument, however, is without merit. Circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex.Crim.App. 2007). Furthermore, the jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000). The jury may believe or disbelieve all or part of any witness's testimony. Jones, 984 S.W.2d at 258. Appellant also contends that without the allegedly improper hearsay testimony, the evidence is legally and factually insufficient to uphold the verdict of guilt. Appellant's contention that this court should not consider the allegedly inadmissible hearsay when conducting its legal and factual sufficiency review is incorrect. An appellate court must consider all evidence actually admitted at trial in its sufficiency review and give it whatever weight and probative value it could rationally convey to a jury. Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App. 2004). Thus, even if the trial court erred in admitting the alleged hearsay testimony, we must consider the testimony in assessing the sufficiency of the evidence. Id. at 489-90. The only contrary evidence appellant provides is the complainant's inability to identify appellant's height with specificity. Michael Duke testified the assailant was "a couple inches taller" than him. Mr. Duke measures at 5'11" and appellant at 6'7". However, there are varying accounts of appellant's height by other witnesses. For instance, Thomas Moore testified appellant was perhaps taller than 6'3". It is not the appellate court's responsibility to resolve all conflicts that appear in the record. See Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982). In reviewing the factual sufficiency of the judgment below, this Court should be ever mindful of the fact finder's role in assessing the witnesses' credibility and resolving conflicts in the evidence. See Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984) (examining jury's role in evaluating witness' credibility); Bowden, 628 S.W.2d at 784 (examining jury's role in resolving conflicts). In this case, the Court has the responsibility of reviewing the facts only to ensure that the verdict is not so against the great weight of the evidence as to be manifestly unjust. See Prible, 175 S.W.3d at 731. After viewing all of the evidence, we cannot say the jury's determination that appellant was correctly identified as the assailant is against the great weight of the evidence. See id. Viewing the evidence in the light most favorable to the verdict, we hold the evidence is legally sufficient to support appellant's conviction for aggravated kidnapping because any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Salinas, 163 S.W.3d at 737. Viewing the evidence in a neutral light, we hold the evidence supporting the verdict is neither so weak the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong the beyond-a-reasonable-doubt standard could not have been met. See Prible, 175 S.W.3d at 730-31. Thus, the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first two issues.B. Did the trial court's conduct violate appellant's constitutional rights?
In appellant's first issue, he contends his "constitutional rights to due process and to the effective assistance of counsel were violated by numerous judicial abuses of discretion in the presence of the jury that cast defense counsel in an extremely unfavorable light, constituted improper and unconstitutional comments on the weight of the evidence and prejudiced the jury against appellant, his counsel and the case for the defense, thereby preventing appellant from presenting his case and from receiving a fair trial." Appellant directs this court's attention to a number of excerpts in the reporter's record, which he presents in two parts. In part one, appellant contends his constitutional rights to due process were violated by improper judicial comments in the presence of the jury that prevented appellant from receiving a fair trial. In part two, appellant contends he was denied due process when the trial judge allegedly intimidated the defense witness into not testifying. We hold appellant has waived error as to both parts of issue one. 1. Standard of Review Generally, to preserve error, a defendant must make a timely and specific objection. Tex. R. App. P. 33.1. Almost every right, constitutional and statutory, may be waived by failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). Absent an objection, a defendant waives error unless the error is fundamental-that is, the error creates egregious harm. Ganther v. State, 187 S.W.3d 641, 650 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd); see Tex. R. Evid. 103(d); Villareal v. State, 116 S.W.3d 74, 85 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Egregious harm is such harm that a defendant has not had a fair and impartial trial. Ganther, 187 S.W.3d at 650. In this case, since appellant failed to make timely and specific objections at trial, the only way appellant's claim survives on appeal is if the trial court's comments constitute fundamental error. 2. Analysis a. Were the trial court's allegedly improper comments in the presence of the jury fundamental error? Appellant directs us to twenty-eight instances in which the trial court made comments which were allegedly prejudicial to the defense's case thus preventing appellant from receiving a fair trial. The comments appellant complains of occurred during each phase of trial, from voir dire through punishment. Since appellant failed to object at trial, the comments must rise to the level of fundamental error to be preserved for appeal. The United States Supreme Court has determined when certain constitutional rights are violated fundamental error occurs. Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991); Williams v. State, 194 S.W.3d 568, 579 (Tex.App.-Houston [14th Dist.] 2006), aff'd, 252 S.W.3d 353 (Tex.Crim.App. 2008). The Court has defined such errors as "structural defects in the constitution of the trial mechanism." Fulminante, 499 U.S. at 309, 111 S.Ct. at 1265. The Court has determined these fundamental constitutional rights include the right to counsel, the right to an impartial judge, the right to not have members of the defendant's race unlawfully excluded from a grand jury, the right to self-representation at trial, and the right to a public trial. Id. at 309-10, 111 S.Ct. at 1264-65; Williams, 194 S.W.3d at 579. In addition to the fundamental errors established by the United States Supreme Court, a plurality of the Texas Court of Criminal Appeals, in Blue v. State, held another fundamental error of constitutional dimension could exist if a trial judge makes a comment that taints the presumption of innocence. Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App. 2000). Appellant relies on Blue as the primary basis for his argument that the trial court's comments in this case constitute fundamental error, therefore not requiring objection during trial to preserve error. Even if Blue were not a plurality opinion, and were binding on this court, the trial court's comments in this case did not rise to such a level as to bear on the presumption of innocence or vitiate the impartiality of the judge. Here, the majority of the comments appellant complains of fall within the court's broad discretion to expedite and maintain control over the trial. Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001). After careful review of the record, we conclude appellant failed to show the comments by the trial court constitute fundamental error in this case. Even if the trial court's comments constitute non-fundamental error, appellant failed to properly object during trial. Accordingly, appellant has waived his complaint. b. Did the trial court commit fundamental error by the judge allegedly intimidating the defense witness into not testifying in violation of appellant's due process rights? In part two of his first issue, appellant contends he was denied due process when the trial judge allegedly intimidated the defense witness into not testifying. Appellant, however, made no objection followed by an offer of proof, and therefore preserved nothing for the appellate court to consider. Tex. R. App. P. 33.1; see Haliburton v. State, 80 S.W.3d 309, 315 (Tex.App.-Fort Worth 2002, no pet.). Appellant cites Webb v. Texas for the proposition that threatening remarks of a trial judge which drove a witness off the stand deprived the defendant of due process, therefore making it a fundamental right not requiring objection to preserve error for appellate review. Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353, 34 L.Ed.2d 330 (1972). Appellant is correct that under certain circumstances, a defendant's due process rights may be infringed by threats of intimidation that dissuade a witness not to testify. See id. at 98, 93 S.Ct. at 353 (holding fundamental right was violated when trial judge's emphatic remarks prevented a witness from testifying). However, we find Webb inapplicable to the facts of this case. In Webb, prior to the witness beginning testimony, the trial judge singled out the witness for a "lengthy admonition on the dangers of perjury." The reviewing court stated the fact the witness had appeared in the court to testify, refusing to do so only after the judge's warning, strongly suggested that the judge's comments were the cause of the witness' refusal. Id. at 97, 93 S.Ct. at 353. Here, the judge gave the defense witness a brief contempt warning, but only after the witness had testified at length for the defense. Since we find no fundamental error, appellant's lack of objection and offer of proof has waived the argument for appeal. With nothing preserved for this court to consider, we overrule appellant's first issue.C. Did the trial court err by admitting improperly authenticated business records and improper hearsay testimony?
In part one of his second issue, appellant contends the trial court erred in overruling his objections to State's exhibits 68 and 69 on hearsay and authentication grounds. The exhibits at issue here include two sets of telephone records. We hold the trial court properly admitted State's exhibits 68 and 69 as self-authenticated business records. See Tex. R. Evid. 902(10)(a). In the second part of this issue, appellant contends the trial court erred in overruling appellant's objections to hearsay testimony. After reviewing the record, we hold the trial court did not abuse its discretion in admitting the alleged improper hearsay testimony. 1. Standard of Review 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). Generally, hearsay is not admissible. Tex. R. Evid. 802. For hearsay to be admissible, it must fit into an exception provided by a statute or the Rules of Evidence. Id. A statement not offered to prove the truth of the matter asserted is not hearsay. Martinez v. State, 22 S.W.3d 504, 508 (Tex.Crim.App. 2000). We review the trial court's evidentiary ruling under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The admissibility of an out-of-court statement under the exceptions to the hearsay rule is within the trial court's discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). A trial court's decision to admit or exclude hearsay will not be reversed absent a clear abuse of this discretion. Id. An abuse of discretion occurs only when the decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id. 2. Analysis a. Did the trial court abuse its discretion by admitting the telephone records in State's exhibits 68 and 69 as self-authenticated business records? Appellant argues State's exhibits 68 and 69 were erroneously admitted because they violate the hearsay rule. He maintains that since the dates of the accompanying affidavits and the letter accompanying the transmitted records were a year apart, the records lack trustworthiness. The State argues the trial court properly concluded the telephone records in State's exhibits 68 and 69 were trustworthy because the State had established an adequate foundation for the admission of those records as business records under the Texas Rules of Evidence. We find no merit in appellant's argument and agree with the State. Properly authenticated records of regularly conducted business activity can be admitted into evidence as an exception to the hearsay rule. Tex. R. Evid. 806(6). Under the provisions of Rule 902(10)(a), a party may introduce business records into evidence without the testimony of a live witness provided the records are accompanied by an affidavit. Where a party intends to introduce self-authenticated business records into evidence, it must file the records and the affidavit with the clerk of the court at least fourteen days before trial begins. Tex. R. Evid. 902(10)(a). Additionally, the party filing the records and the affidavit must give other parties in the case prompt notice of the filing. Id. There is no requirement in Rule 902(10)(a) that the affidavit must be dated the same as the letter accompanying the corresponding business records. See id. Appellant also cited no authority to support the proposition that the dates must correspond. Furthermore, there is nothing in the record that leads us to believe the telephone records lacked authenticity or trustworthiness. Accordingly, we conclude the trial court did not abuse its discretion by admitting State's exhibits 68 and 69. b. Did the trial court abuse its discretion by admitting improper hearsay testimony? In part two his second issue, appellant argues the trial court improperly allowed the State to introduce inadmissible hearsay testimony during the trial. Appellant directs our attention to nine excerpts in the record and claims the court improperly overruled appellant's objections to hearsay testimony. Because of similarities in the alleged errors, we will address the hearsay allegations in two groups. First, appellant complains of allegedly improper hearsay testimony of Detective Isaac Villarreal. Appellant contends much of the State's case was introduced through Detective Villarreal's hearsay testimony. Appellant directs us to five excerpts in which he contends the hearsay objections should have been sustained. The State argues the objected to testimony was not hearsay because an officer is permitted to testify to general information he received that led the officer to identify the appellant as a suspect during the officer's investigation. We agree with the State. Statements offered for the purpose of explaining how a defendant became a suspect and not for the truth of the matter asserted are not hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995) (holding appointment book and patient application form were not hearsay when tendered to show how appellant became a suspect in the investigation). Thus a police officer may testify that after taking a witness' statement the investigation focused on a particular suspect. See Gholson v. State, 542 S.W.2d 395, 398 (Tex.Crim.App. 1976), cert. denied, 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977) (holding "[a]n extra-judicial statement or writing may be admitted as circumstantial evidence from which an inference may be drawn, and not for the truth of the matter stated therein, without violating the hearsay rule."). After reviewing the excerpts in the record appellant brought to our attention, we hold the alleged hearsay testimony of Detective Villarreal was offered to explain how appellant became a suspect and not for the truth of the matter asserted, and is therefore not hearsay. Second, two of appellant's hearsay objections were waived on appeal because the same evidence was introduced from another source without objection from appellant. The first instance concerns Officer Eilers' testimony that "[a] citizen came in and advised [him] there was a problem in the parking lot." Michael Duke and Thomas Moore testified from personal knowledge that there was a problem in the parking lot. The second instance concerned testimony of Detective Villarreal about determining Ryan Hudnall rented a car from Hertz that matched the description of the car at the scene of the offense. The Hertz rental car agreement, State's exhibit 76, which contains the same information as Detective Villarreal's testimony, was admitted without appellant's objection. The applicable rule is when the accused in a criminal case offers before the jury the same evidence as that to which he objected, or the same evidence is introduced from another source, he is in no position to complain on appeal. Withers v. State, 642 S.W.2d 486, 487 (Tex.Crim.App. 1982). Assuming, arguendo, the complained of testimony was hearsay, appellant cannot complain about it on appeal because the same evidence was admitted in other parts of the trial without objection from appellant. Appellant's second issue is overruled.D. Did appellant waive his issues by taking the stand at the punishment stage and confessing to the offense?
In his fifth issue, appellant contends he did not waive issues one through four by taking the stand at the punishment stage and confessing to the offense. We need not address this issue because, having addressed and overruled each of appellant's other issues, this final issue becomes moot.CONCLUSION
Having overruled appellant's first four issues and having determined the fifth issue is moot, we affirm the trial court's judgment.Appendix — "A"
A. A citizen came in and advised me there was a problem in the parking lot.MR. CASTLEBERRY: Object to hearsay, Your Honor.
MR. LEUCHTMAN: Judge, we're talking for the purposes of probable cause, not for the truth of the matter asserted.
THE COURT: That will be overruled.Q. Were y'all discussing work, or were y'all discussing the lawsuit? What were y'all talking about?
MR. CASTLEBERRY: Object to hearsay, Your Honor.
THE COURT: That will be overruled. He may state what he said.Q. And did that missing license place correspond with the license plate that had been attached to the suspects' vehicle?
MR. CASTLEBERRY: Objection, Your Honor. There is no foundation for that.
THE COURT: That will be overruled.
THE WITNESS: I'm not sure quite how to answer that question.
THE COURT: You may answer.A. The name that I had was Derrick Henderson. Q. And how were you able to — how were you able to come up with that name? A. Derrick Henderson? Q. Yes. A. I had interviewed the —
MR. CASTLEBERRY: Object to hearsay, Your Honor.
THE COURT: That objection will be overruled.Q. (By Mr. Leuchtmann) How were you able to come up with the name of Derrick Henderson? A. I conducted an interview with Ryan Hundall's estranged wife. Q. What is her name? A. Rachel Hudnall. Q. In talking to Hertz, are you able to determine if Ryan Hudnall rented a car of that description on the day of the offense?
MR. CASTLEBERRY: Object to hearsay, Judge.
THE COURT: That will be overruled.Q. (By Mr. Leuchtmann) You talked to Rachel Hudnall. What else? A. Find out that Ryan Hudnall has a friend by the name Derrick Henderson.
MR. CASTLEBERRY: Object to hearsay, Your Honor.
THE COURT: Be overruled.Q. (By Mr. Leuchtmann) Okay. You find out he has a friend named Derrick Henderson, right? A: Yes, sir. A. Well, at the time, all I had was the name. When I went to the motel room to check the register for that day in question, I saw Derrick Henderson's name on the register.
MR. CASTLEBERRY: Object hearsay, Judge.
THE COURT: That will be overruled, to that particular objection.Q: ( By Mr. Leuchtmann) Let's move on to Big Cabin. And what other evidence do you have that links him to this crime? A. The traffic stop that was initiated in Big Cabin.
MR. CASTLEBERRY: We object to that, Judge, as hearsay.
THE COURT: That will be overruled.A. The traffic stop in Big Cabin, which is videotaped, shows Derrick Henderson driving Ryan Hudnall's —
MR. CASTLEBERRY: Object to the video game [sic] being talked about, Judge. That's hearsay.
THE COURT: Be overruled.
THE WITNESS: The videotape shows Derrick Henderson driving a red pickup truck that was registered to Ryan Hudnall. The video also shows Derrick Henderson —
MR. CASTLEBERRY: Your Honor, we object. There has been no evidence that Derrick Henderson was identified as driving that truck on that videotape.
THE COURT: Be overruled.Q. (By Mr. Leuchtmann) And the Visa records also show that he paid something to a bond company on that same day, correct?
MR. CASTLEBERRY: Object to hearsay, Judge.
THE COURT: That will be overruled.
THE WITNESS: Yes. The Visa records show that Ryan Hudnall used that Visa card to post his bond.
MEMORANDUM CONCURRING OPINION
It is proper to affirm the trial court's judgment. However, in its opinion, the majority incorrectly characterizes appellant Derrick Dewayne Henderson's arguments under his second issue regarding the phone records. The arguments asserted at trial and on appeal in this regard lack merit.Appellant's Trial Objections to the Phone Record Exhibits
The State offered certain phone records into evidence as State's Exhibit 68. The trial court admitted this exhibit into evidence over the following objection by appellant:Your Honor, we're going to object to these records. Records were provided to me similar to these under a business records affidavit; and what they were comprised of was a copy of the records, which Detective Villareal received, as he has just testified. Then we relied on those records because they were filed under a business records affidavit. The business records affidavit was received from Sprint, or was sent to Sprint Corporation to verify those records. And you can tell this — you can see the records in the Court's file, the records that were filed by the prosecutor's office. Then the business records affidavit was faxed back to the District Attorney's Office and put with these records as if these records were sent to the D.A.'s Office under a business records affidavit.
Now this is what I relied on. I have no idea what they've got there; but at any rate, the affidavit, which purported to be sent with those records, were not, in fact, sent with those records, but sent by itself and put with those records as if they are sent under business records affidavit. So, in other words, the custodian of records for Sprint Corporation apparently sent the business records affidavit under false pretenses if they had sent those records, and those records do not have the same fax header on them that the business records affidavit has. So, we're going to object to these records being used in the trial.The State also offered certain phone records into evidence as State's Exhibit 69. The trial court admitted this exhibit into evidence over the following objection by appellant:
Your Honor, we're going to object to these records, because they are hearsay. They did not come into this court with a business records affidavit. This is the business records affidavit with to and from fax headers. These records don't have these same fax records [sic] on them, so they do not belong together. This is just hearsay with a loose business records affidavit, so we object.State's Exhibit 68 is a business-records affidavit executed on July 26, 2007, that proves the attached records are business records of Sprint Nextel. Attached to the affidavit is a cover letter to an investigating police officer dated May 5, 2006, that contains phone records. State's Exhibit 69 is a business-records affidavit executed on July 24, 2007, that proves the attached records are business records of Sprint Nextel. Attached to the affidavit is a cover letter to an investigating police officer dated June 5, 2006, that contains phone records. The objections appellant voiced in the trial court as to these two exhibits can be summarized as follows: (1) though the State filed business-records affidavits and served them on appellant's counsel, the documents attached to these affidavits are not the same as the documents contained in the affidavits in the two trial exhibits, as shown by the alleged fact that the records in the exhibits do not have the same "fax headers" as the records in the respective business-records affidavits that the State filed and served; and (2) in the alternative, the documents attached to the affidavits in the two trial exhibits were not attached to the respective affidavits in the trial exhibits when the respective affiants signed them. To the extent appellant asserts complaints on appeal that go beyond these objections, appellant did not preserve error in the trial court. On appeal, appellant does not present argument regarding the former objection; however, he does argue that, because the affidavits in the two trial exhibits were signed more than a year after the respective attached cover letters, it is apparent that no documents were attached to these two affidavits when they were signed. However, this contention does not logically follow. If, as stated in the two affidavits, the attached letter and enclosures are business records of Sprint Nextel, there is no reason that affidavits proving up the status of these documents as business records could not be signed more than a year after the letters were sent. Our record does not contain any evidence showing that the documents attached to the affidavits in the two exhibits were not attached to the respective affidavits when they were signed. Therefore, the trial court did not abuse its discretion in overruling the latter objection. Even if appellant had presented appellate argument regarding the former objection, it would lack merit. First, our record does not contain copies of the business-records affidavits from the trial court's file that were served on appellant, which appellant stated in the trial court were different from the two affidavits in the exhibits. Second, the affidavits in the exhibits are copies of affidavits that were file-stamped, showing that they had been filed in the trial court. Because our clerk's record does not contain copies of any business-records affidavits filed by the State in the trial court below, appellant has not presented this court with a record showing the trial court's alleged error, that is, appellant has not presented this court with a record showing filed affidavits that differ from the two affidavits contained in the trial exhibits. In addition, the affidavits may have been faxed before they were signed by the affiants. Therefore, even if the affidavits themselves contain fax headers different from the attached documents, that difference does not necessarily mean that the documents were not attached to the affidavits when they were signed. For the above reasons, appellant's appellate arguments regarding State's Exhibits 68 and 69 lack merit.