IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-75,479
DEMETRIUS DEWAYNE SMITH, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL
FROM CAUSE NO. 1021168 IN THE 183RD DISTRICT COURT
HARRIS COUNTY
K EASLER, J., filed a concurring opinion.
CONCURRING OPINION
I join the Court’s opinion with the exception of its resolution of points of error
eighteen and nineteen.1 I would hold that State’s Exhibits 73 and 74, the TDCJ-ID
penitentiary packets containing disciplinary reports and hearing records concerning
Demetrius Dewayne Smith’s past prison conduct, are business records that do not constitute
1
Russeau v. State, 171 S.W.3d 871, 887-88 (Tex. Crim. App. 2005) (Keasler, J.,
dissenting.).
testimonial hearsay under Crawford v. Washington.2 The analysis set out in Ohio v. Roberts 3
controls, and because the records fall within a firmly rooted hearsay exception, Smith’s rights
under the Confrontation Clause were not violated.
DATE DELIVERED: May 6, 2009
PUBLISH
2
541 U.S. 36 (2004).
3
448 U.S. 56 (1980).