Vasquez v. State

Full title: JESUS ALEJANDRO VASQUEZ, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Jan 9, 2003

No. 14-01-01018-CR (Tex. App. Jan. 9, 2003)

Opinion

No. 14-01-01018-CR.

Opinion Filed January 9, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).

Appeal from the County Criminal Court at Law No. 5, Harris County, Texas, Trial Court Cause No. 1050521. Affirmed.

Before Chief Justice BRISTER, Justices HUDSON and FOWLER.

MEMORANDUM OPINION

WANDA McKEE FOWLER, Justice

Appellant was found guilty of possession of marijuana, a class B misdemeanor, and sentenced to 180 days in jail and a $2,000 fine. On appeal, appellant complains that the trial court abused its discretion by (1) allowing a custodial statement in evidence, (2) allowing jail cards in evidence without requiring a proper predicate to prove that the business records exception applied, and (3) allowing irrelevant judgments and sentences in evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Officer Peloquin and another police officer were investigating a fellow officer's home burglary and had received information that appellant might be involved with the theft. As the two officers approached appellant's house they noticed a parked car and smelled burning marijuana coming from the car. One officer witnessed appellant smoking a lit marijuana cigarette, and, upon a search, the officers found a bag of marijuana in the car. After detaining appellant and his friend, appellant asked to speak to Officer Peloquin. Appellant told the officer he knew where the police vest was located, and if the officer would drop all charges, he would show the officer where the vest was. Officer Peloquin agreed not to charge him for theft of the vest, but not the anticipated charge for possession of marijuana. Appellant agreed and showed the officers where the vest was hidden. Ultimately, appellant was tried for the possession of marijuana and was found guilty by a jury. During the punishment phase, the State offered appellant's statement regarding the vest. The defense objected, but the trial court admitted the evidence. The State also wanted to show that appellant had six prior convictions.¹ However, because the fingerprints on appellant's previous judgments and sentences were unidentifiable, the State attempted to admit the jail cards — which contained identifiable fingerprints — for each of the prior convictions. The State intended to match the cause numbers on the jail cards to the cause numbers on the judgments and sentences, thereby proving that appellant had committed the previous crimes. Appellant objected to both the jail cards and the judgments and sentences. As to the jail cards, he objected that no predicate was laid; with regard to the judgments and sentences, he objected that they were irrelevant. The trial court overruled the objections and admitted the evidence. Later during the defense's presentation during punishment, appellant testified and admitted cooperating with the police and admitted he was the same individual convicted of the six previous crimes.

1 These six crimes involved two convictions for felony possession of marijuana, two convictions for driving with a suspended license, and a conviction each for reckless conduct and evading arrest.

DISCUSSION

Appellant raises three points of error. In his first issue, appellant contends his statement should not have been admitted because he was in custody without a Miranda warning. Second, appellant complains the court erred in admitting the jail cards without the predicate to the business record exception. Finally, appellant asserts the judgment and sentences were irrelevant and should not have been admitted in evidence.

1. Statement by Appellant

First, appellant contends his statement while in custody, without a Miranda warning, should have been inadmissible.² Generally, the use of statements arising from custodial interrogation and obtained without complying with statutory safeguards is precluded. Tex. Code Crim. Proc. Ann. art. 38.22. However, the admission of a statement that does not "stem from custodial interrogation" is not barred. Tex. Code Crim. Proc. Ann. art. 38.22, § 5. While the State concedes appellant was in custody when he made the comments to Officer Peloquin, the focus is whether the statement given was the result of a custodial interrogation. We hold it was not. For Miranda warnings to apply, more than just custody is needed — interrogation is required. Griffith v. State, 55 S.W.3d 598, 603 (Tex.Crim.App. 2001). Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966); State v. Waldrop, 7 S.W.3d 836, 839 (Tex.App.-Austin 1999, no pet.). Interrogation must reflect "a measure of compulsion above and beyond that inherent in custody itself." Smith v. State, 60 S.W.3d 885, 889 (Tex.App.-Amarillo 2001, no pet.); see also Rhode Island v. Innis, 446 U.S. 291, 300 (1990) (holding that any statement given freely and voluntarily without any compelling influences is admissible in evidence). Here, appellant was not subjected to interrogation. Appellant voluntarily initiated the conversation, asking to speak to Officer Peloquin. Moreover, appellant voluntarily said to the officer "I know where the vest is, if you'll let me go." Officer Peloquin did not question appellant about the vest, or compel him to give this statement. There was no interrogation by police, no coercion by the officers, and no compulsion to give the statement.

2. Predicate of Business Record Exception to Jail Cards

Second, appellant complains the predicate to the business record exception was not met before appellant's jail cards were admitted at the punishment phase. Tex. R. Evid. 803(6). For the exception to be met, four elements must be satisfied by the person offering the evidence: (1) the record must be made at or near the time of the event; (2) the record must be made by a person with knowledge; (3) the record must be kept in the regular course of business, and (4) it must be a regular practice to make the record. Id.; see also Perry v. State, 957 S.W.2d 894, 899 (Tex.App.-Texarkana 1997, pet. ref'd). Appellant contends the State did not satisfy two requirements: that a person with knowledge made the record, and that it was a regular practice to make the record. The State attempted to lay the predicate to the business record exception in the following way:

Q. What does a person who works in the Inmate Records Division do?

A. We process paperwork pertaining to inmates that are currently in our jail or have been in our jail before. We also process all the paperwork pertaining to court proceeding like this.

MS. SHERMAN: May I approach the witness, Your Honor?

THE COURT: Yes.

(BY MS. SHERMAN): I'm going to show you what's been marked as State's Exhibit A2 through F2 and ask you if you recognize these?

A. Yes.

Q. What are they?

A. They're certified copies of jail cards I brought with me.

Q. Okay. And the jail cards that you brought with you, are those kept in the regular course of business in your job?

A. Yes, they are.

Q. Are the entries on those made at or near the time of the happenings or the events they reflect?

A. Yes, they are.

Q. Okay. And did you say that those are certified or exact copies?

A. Yes. These are certified copies of the original.

At this point the State offered the jail cards in evidence, and the defense objected because of lack of proper predicate. The trial court admitted the jail cards. We agree that the State did not make the proper business record predicate. The State failed to establish that the jail cards came from a "person with knowledge." See Tex. R. Evid. 803(6); see also Knox v. Taylor, 992 S.W.2d 40, 64 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding even when the witness testified he was the custodian of records and answered the other three business record exception questions, the proper predicate was not established). Additionally, the State did not establish that it was a regular business practice for the State to make the jail cards. Nonetheless, any error in allowing the jail cards in evidence is harmless. "[T]he improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged." Leday v. State, 983 S.W.2d 713, 717 (Tex.Crim.App. 1998) (citing Crocker v. State, 573 S.W.2d 190, 201 (Tex.Crim.App. 1978)). It does not matter whether the evidence was admitted before or after the error, and it does not matter whether the evidence was introduced by the defense or the State. Leday, 983 S.W.2d at 718. The State's purpose in admitting the jail cards was to link appellant with several other crimes. When appellant took the stand in cross-examination, he fully admitted he was the same individual convicted of the six previous crimes. Therefore, any harm that occurred by allowing the jail cards in evidence was cured with appellant's testimony.

3. Relevance of Judgments and Sentences

Finally, appellant argues that allowing the prior judgments and sentences in evidence during the punishment phase was error because they were irrelevant. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. A trial court has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial. See Moreno v. State, 1 S.W.3d 846, 861 (Tex.App.-Corpus Christi 1999, pet. ref'd). The code of criminal procedure permits trial courts to admit evidence deemed relevant to sentencing, including evidence of other crimes or bad acts, if it would assist the fact finder in determining the appropriate sentence. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1); Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). As described above, the State introduced the judgments and sentences to inform the jury that appellant had six prior convictions. This information is highly relevant for assessing punishment. The trial court did not abuse its discretion when it allowed this information into evidence. However, even assuming the judgments were irrelevant, the appellant must establish harmful error. The appellant simply argues the judgments and sentences were irrelevant and harmful. He does not point this Court to any evidence of harm. Additionally, appellant testified that he was convicted of the same offenses depicted in the judgment and sentences. Again, as discussed above if the same facts are admitted without objection, no harm occurs. Therefore, we find the judgment and sentences were relevant, and even in the alternative, error was harmless. We overrule all three of appellant's issues, and affirm the judgment of punishment assessed by the jury. Judgment rendered and Opinion filed January 9, 2003.