Opinion
NO. 09-11-00049-CR
06-27-2012
JAMES MICHAEL PELUSO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 10-04-03344 CR
MEMORANDUM OPINION
Officer Johnson attempted to stop James Michael Peluso's vehicle after Peluso ran a red light. Peluso was driving a stolen truck. He led Johnson on a high-speed chase through city streets. During his flight, Peluso ran stop signs and stop lights. The chase ended when he drove the truck into another vehicle. He attempted to flee the scene of the crash but was stopped by Johnson. One of the occupants of the other vehicle was injured in the wreck.
Peluso pleaded guilty to four criminal offenses and true to an enhancement allegation. He received two years for unauthorized use of a motor vehicle, ten years for failure to stop and render aid, nineteen years for evading arrest and causing serious bodily injury, and fifty-five years for aggravated assault with a deadly weapon.
Peluso raises three issues challenging the admissibility of evidence at the punishment phase of the trial. Generally, an appellate court reviews a trial court's admission of evidence under an abuse of discretion standard. The reviewing court will not disturb the trial court's ruling if the decision was within the bounds of reasonable disagreement. When reviewing a Confrontation Clause ruling, however, an appellate court applies a de novo standard of review.
Sells v. State, 121 S.W.3d 748, 766 (Tex. Crim. App. 2003).
Id. (citing Rachal v. State, 917 S.W.2d 799, 816 (Tex. Crim. App. 1996)).
See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
Peluso argues that the trial court abused its discretion in overruling his Rule 902 objection and admitting Exhibits 5, 6, 7, 9, 10, and 11. These exhibits are copies of Pennsylvania criminal records. Rule 902 of the Texas Rules of Evidence provides for self-authentication of certain types of records, including copies of public records "authorized by law to be recorded or filed and actually recorded or filed in a public office" that are "certified as correct by the custodian or other person authorized to make the certification . . . ."
Tex. R. Evid. 902(4); see Price v. State, 35 S.W.3d 136, 143 (Tex. App.—Waco 2000, pet. ref'd) (op. on rehearing).
Peluso does not argue that the records cannot be self-authenticated, nor does he contend he is not the person named in the documents. Instead, he asserts that because many of the individual pages in Exhibits 5, 6, 7, 9, 10, and 11 are not stamped as certified by the court clerk, the exhibits are not self-authenticated. He also asserts that it is impossible to group the documents or determine whether they all issued from the same files.
The documents are grouped by cause numbers. Although each page of the challenged exhibits is not stamped certified, the beginning page for the cases admitted as exhibits under their respective cause numbers is stamped certified. We see no abuse of discretion by the trial court. Peluso's issue on authentication is overruled.
Peluso argues that the trial court, through its evidentiary rulings, violated the hearsay rule and the Confrontation Clause of the Sixth Amendment. During the punishment phase of the trial, the trial court admitted into evidence the Pennsylvania court records (Exhibits 5, 6, 7, 9, 10, and 11), including arrest records of Peluso, arrest-warrant affidavits, criminal complaints, scheduling orders, allegations of parole violations, orders revoking parole, guilty pleas, and judgments. Peluso references criminal complaints signed by police officers that allege, in "boilerplate" fashion, statutory criminal violations and the victims' names. He also focuses on the arrest-warrant affidavits that contain narrative details relating to his offenses, and he mentions an affidavit stating that he had a "reputation in the neighborhood for engaging in criminal activity." Peluso asserts that when the State cross-examined him, the prosecutor relied on the affidavits to indirectly introduce facts about the incidents. Although Peluso admitted to having committed the Pennsylvania offenses, he contends that the "testimonial" statements allowed the jury to consider more than just the convictions.
The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." Where testimonial evidence is at issue, the Sixth Amendment requires the unavailability of the witness and a prior opportunity for cross-examination.
U.S. Const. amend VI; Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
See Michigan v. Bryant, 131 S.Ct. 1143, 1153, 179 L.Ed.2d. 93 (2011) (citing Crawford, 541 U.S. at 68); Langham v. State, 305 S.W.3d 568, 575-76 (Tex. 2010).
The challenged evidence was admitted during the trial's punishment phase. The Texas Court of Criminal Appeals has left open the question of whether the Confrontation Clause applies in the punishment phase of a jury trial in a noncapital case. It is not necessary to decide the issue here. Assuming the Confrontation Clause applies in this context and that the Pennsylvania records contain testimonial evidence, any error in their admission is harmless.
See Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010).
Error under the Confrontation Clause is subject to a constitutional harm analysis. The error requires reversal unless the reviewing court can determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. In conducting the analysis, the reviewing court "must 'calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence.'"
Langham, 305 S.W.3d at 582.
See Tex. R. App. P. 44.2(a); Scott v. State, 227 S.W.3d 670, 690-91 (Tex. Crim. App. 2007).
Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim. App. 2008) (quoting Jones v. State, 119 S.W.3d 766, 777 (Tex. Crim. App. 2003)).
The jury was aware of Peluso's extensive criminal history. In addition to the Pennsylvania court records, the jury had before it four earlier Texas convictions for burglary of a habitation, unauthorized use of a motor vehicle, theft, and possession of a controlled substance. The Pennsylvania arrest-warrant affidavits were part of the Pennsylvania misdemeanor cases to which Peluso had pleaded guilty.
The jury also heard the testimony of Officer Johnson, the Lears, and Peluso concerning the facts surrounding the offenses in this case. These facts included Peluso's driving a stolen vehicle, leading police on a high-speed chase, running a red light, crashing into the Lears' car, injuring one of the occupants, failing to stop and render aid, and fleeing the scene. The record contains photographs of the vehicle into which Peluso crashed, and of the vehicle's injured occupant. The State's opening and closing arguments did not mention the Pennsylvania arrest-warrant affidavits. We conclude Crawford error did not contribute to the punishment.
See Langham, 305 S.W.3d at 582.
Peluso also objected to the admission of these exhibits on hearsay grounds. Generally, hearsay is not admissible unless a statute or evidentiary rule provides otherwise. Under certain circumstances, public records are admissible under Rule 803(8) of the Texas Rules of Evidence. Peluso relies on an exclusion to the hearsay exception contained in Rule 803(8)(B). The exclusion to the hearsay exception applies "in criminal cases matters observed by police officers and other law enforcement personnel[.]" This material is excluded from the hearsay exception because of the "inherently adversarial nature of any on-the-scene or post hoc investigation of a criminal suspect."
See Tex. R. Evid. 802, 803; Shuffield v. State, 189 S.W.3d 782, 790 (Tex.Crim. App. 2006).
Fischer v. State, 252 S.W.3d 375, 382-83 (Tex. Crim. App. 2008).
The erroneous admission of a hearsay statement constitutes non-constitutional error that is subject to a harm analysis. A non-constitutional error that does not affect substantial rights must be disregarded. We may disregard the error if, after examining the entire record, we have a fair assurance that the error did not influence the jury, or had but a slight effect. We have concluded that any trial court error in admitting the challenged exhibits was harmless under the more stringent standard imposed by Rule 44.2(a) for analyzing harm of constitutional errors. Given the circumstances in this case, any error in admission of the Exhibits 5, 6, 7, 9, 10, and 11 over a hearsay objection does not require reversal of the trial court's judgment under Rule 44.2(b).
See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist. pet. ref'd).
Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).
Id.
Appellant's three issues are overruled. The trial court's judgment is affirmed.
AFFIRMED.
__________________
DAVID GAULTNEY
Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ.