IN THE
TENTH COURT OF APPEALS
No. 10-96-053-CV
L.A. LUDLOW, ET UX.,
Appellants
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Ellis County, Texas
Trial Court # C-2716
MEMORANDUM OPINION
On December 2, 1996, the parties filed an agreed motion to dismiss this appeal. In relevant portion, Rule 59(a) of the Texas Rules of Appellate Procedure provides:
(1) The appellate court may finally dispose of an appeal or writ of error as follows:
(A) In accordance with an agreement signed by all parties or their attorneys and filed with the clerk; or
(B) On motion of appellant to dismiss the appeal or affirm the judgment appealed from, with notice to all other parties; provided, that no other party shall be prevented from seeking any appellate relief it would otherwise be entitled to.
Tex. R. App. P. 59(a).
The parties state that they have settled their controversy. The agreement is signed by attorneys for both the appellants and the appellee.
Pursuant to this agreement, the cause is dismissed with each party to bear its own costs.
PER CURIAM
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Dismissed
Opinion delivered and filed December 4, 1996
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A. Yes, sir.
Q. In fact, you wrote him a note and gave it to him the night before this happened, didn’t you?
A. Yes, sir.
Q. I want to show you what has been marked Defendant’s Exhibit 1 or D-1 and ask you if you recognize that particular document?
A. Yes, sir.
Q. What is that particular document, Mr. Delarosa?
A. I tried – – I guess it’s like a threat. I tried to threaten him. I was mad, you know.
Q. All right. Is this particular document in your handwriting?
A. Yes, sir.
***
Q. Correct me if I read this wrong. It says, “Fuck you, Shavnon non.” Tell the jury what Shavnon non means. Is that a Spanish term?
A. It’s like the meaning for youngster.
Q. Youngster. All right. “And just leave me alone. I’m not here no more. I hope you die or get real sick and I got a big surprise for you.” Is that correct?
A. Yes, sir.
Q. So the night before this particular incident took place, you gave that to Shawn Shugart; is that correct?
A. Yes, sir.
Now, we must review the specific testimony of McNeil that was offered in the bill of exceptions. The offered testimony included the following:
Q. I want to ask you this: Did you receive any type of correspondence or letters from Shawn Shugart that expressed any fears which he had regarding some inmates?
A. Yes.
Q. Would you tell the Court exactly what you remember about the letters? And before you answer that, you don’t have the letters anymore, do you?
A. No.
Q. What did the letters say about any fears which he might have had about inmates in TDC?
A. I remember two separate things. The first one I remember he said he feared two inmates and he had written someone, some official in the prison system or in that prison.
Q. Do you know about when you received that particular communication or letter, Terry?
A. Well, I mean, I don’t really know for sure.
Q. Was it in 1996?
A. It was in August, approximately August, give or take a week or two.
Q. And did he mention any names about who he was afraid of?
A. Rosy is the only name I remember him mentioning.
Q. Well, and did he send you any other communication or letters that stated this particular concerning or fear which he had?
A. There was another one stating that he had received a letter saying – – or a note, whatever, from Rosy stating that he wished he was dead and he had a big surprise and he took that as – – that they – – he was really after him.
Q. And again, do you know when he got that particular letter?
A. It was – – they weren’t – – those two letters were not far apart.
Q. But as far as dates, you can’t remember?
A. Not exactly.
Based on this state of the record there are several observations that are noteworthy. The dates Shugart prepared the letters sent to McNeil are not established. One of the letters referenced another document that the testimony established had been delivered to Shugart the night before the altercation. The testimony does not establish that either letter was prepared prior to the August 15, 1996 altercation. Additionally, the testimony does not establish anything more than Terry McNeil no longer had the letters. What had happened to the letters or where the letters were at the time of trial was not shown and would require the trial court to speculate.
BEST EVIDENCE
The “best evidence” objection is a proper basis for exclusion of oral testimony to prove the contents of the letters. Rule 1002 provides “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.” Tex. R. Evid. 1002. Evidence of the contents of a document can be admitted if it meets one of the exceptions listed in Rule 1004 which provides:
Rule 1004. Admissibility of Other Evidence of Contents
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(a) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(b) Original Not Obtainable. No original can be obtained by any available judicial process or procedure;
(c) Original Outside the State. No original is located in Texas;
(d) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the content would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
(e) Collateral Matters. The writing, recording or photograph is not closely related to a controlling issue.
Tex. R. Evid. Rule 1004.
The Court of Criminal Appeals has explained the rational of the best evidence rule. They have stated:
The best evidence rule is applicable; it requires that if the contents of a writing are to be proved, it must be by the production, if possible, of the very writing itself. 3 R. Ray, Tex. Law of Evid., Section 1563 (Texas Practice 3rd ed. 1980). The professed purpose of the production of documents rule being to secure, not the writing at all hazards, but the best obtainable evidence of its contents, if the document cannot as a practical matter be produced, because of its loss, destruction, or absence from the proponent's or the court's control, the production of the original is excused and other evidence of its contents is received. 3 R. Ray, Tex. Law of Evid., Section 1571 (Texas Practice 3rd ed. 1980).
Ortiz v. State, 651 S.W.2d 764, 766 (Tex. Crim. App. 1983).
The Court of Criminal Appeals has also explained the reasons for which the rule was developed at common-law. They summarized them as follows:
"Four somewhat overlapping reasons have been advanced to justify a rule preferring production of the original:
"(1) The nature of documents is often such that the exact words are "of more than average importance, particularly in the case of operative or dispositive instruments . . . where a slight variation of words may mean a great difference in rights."
"(2) Secondary evidence--whether parol testimony or copies--is susceptible to both human and mechanical error. The rule, therefore, enhances the probability of accuracy.
"(3) The rule promotes the prevention of fraud because it allows the parties to examine documents for any defects or alterations, and it dampens any desire to color testimony as to the contents of documents, since any testimony is subject to immediate corroboration.
"(4) The appearance of the original may furnish information as to its authenticity and significance that may be lacking in a copy, such as handwriting, paper and the like. J. Weinstein, M. Berger & J. McLaughlin, Weinstein's Evidence ¶ 1002[02] (1995).
Englund v. State, 946 S.W.2d 64, 67-68 (Tex. Crim. App. 1997).
Shugart appears to have attempted to account for the absence of the original for admission under exception (a). The majority opinion holds the testimony regarding the contents of the letter was not prohibited by any of the common-law reasons for the rule. The majority opinion concludes: “The Rule was clearly intended to apply where one attempts to use a duplicate or to rely on one’s recollection rather than use an original when the language of the document itself is important. None of these reasons for requiring the original of a document can be construed to justify exclusion of verbal testimony or require that Shugart offer the letter itself into evidence.” That is exactly what the rule requires. The evidence that Shugart offers clearly implicates at least the second and third reasons the rule was developed at common-law. In this instance it could also be argued that the first and fourth reasons were applicable.
The majority opinion has elevated an exception to the rule, and used it to destroy the clear language of the rule. The majority opinion would have the trial court first determine whether the opponent has shown that the “collateral matters” exception is not applicable. If not, the best-evidence rule is not a proper ground for exclusion. The rule and its exceptions are built to work the other way. Upon proper objection the rule applies unless the proponent of the evidence establishes that the exception is applicable.
The trial court only erred if he abused his discretion in excluding the evidence. Based upon the testimony, the court could have concluded the absence of the original had not been sufficiently accounted for and that the issue of showing his fear of Delarosa was more than a collateral issue to his theory of having a weapon for self defense. Shugart has not shown that the trial court abused his discretion by determining that the exception is not applicable.
HEARSAYThe hearsay objection calls for a relatively straight forward application of the hearsay rule and one of its many exceptions. Hearsay is defined as “. . . 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). The hearsay rule provides that “Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority.” Tex. R. Evid. 802. Shugart argues that his statements in the letters to McNeil were admissible as an exception to the hearsay rule. He argues that the statements were admissible as a “state of mind exception.” Tex. R. Evid. 803(3). The exceptions provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . (3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
Id.
The purpose of McNeil’s testimony was to establish an evidentiary basis to argue that the weapon was a necessity for self-defense. The testimony offered was that Shugart said he was afraid of Delarosa (“Rosy”) in letters to McNeil. There is no dispute that the testimony of McNeil was being offered to prove that Shugart was in fact afraid of Delarosa. Thus they were out of court statements offered as evidence to prove the truth of the matter asserted. The evidence is classic hearsay. Of course hearsay testimony is admissible if it qualifies as an exception to the rule which otherwise requires the exclusion of hearsay. There are many exceptions. The burden is on the party offering the hearsay statement to establish that an exception is applicable.
To qualify as an exception under 803(3) the timing of the statement is critical. If the statement was made before the altercation and was made as a then existing state of mind (e.g. “I am afraid of him”), it would be admissible as an exception. However, if the statement was made after the altercation, it would either be an inadmissible statement of memory of the condition that existed prior to the altercation (e.g. “I was afraid of him”) or it would be a state of mind that existed after the altercation and therefore irrelevant (e.g. “I am afraid of him”). Only if the statement of fear was made prior to the altercation, while then operating under that fear would the statement be admissible. Thus the specific wording, as well as the timing, of the statement made in the form of letters to McNeil are critical to the analysis of their admissibility.
Based upon the record, it is clear that whether the statements were made before or after the altercation was not established. At best the evidence was that the statements were made in “approximately August, give or take a week or two.” Thus the period when they could have been made extends from July 17, 1996 to September 14, 1996. More important to the analysis, the evidence does not establish that the statements in the letters were made prior to the altercation.
The trial court was there and able to judge the demeanor and credibility of the witness. Shugart has not shown that the trial court abused his discretion by excluding the evidence.
NECESSITY
As the majority concludes in the final paragraph, in order to warrant a plea of justification based on necessity the defendant must admit to the offense. Shugart did not admit the offense. The trial court did not err in refusing to submit an instruction on necessity. The majority opinion’s discussion and purported holding that the defense of necessity may be available for the offense of possession of a deadly weapon in a penal institution is unnecessary to the disposition of this appeal, dicta, and accordingly I do not join in that part of the opinion.
OTHER ISSUES
I concur in the remaining parts of the majority opinion not expressly discussed herein.
TOM GRAY
Justice
Concurring opinion delivered and filed May 3, 2000
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