ACCEPTED
05-14-01369-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/29/2015 10:21:57 AM
No. 05-14-01369-CR LISA MATZ
CLERK
5th Court of Appeals
FILED: 06/01/2015
Lisa Matz, Clerk
12:35:47
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS, TEXAS RECEIVED IN
5th COURT OF APPEALS
DALLAS, TEXAS
5/29/2015 10:21:57 AM
JOHN BRANDON BURKS, LISA MATZ
Clerk
Appellant
vs.
THE STATE OF TEXAS,
Appellee
On appeal from
Criminal District Court Number 5
of Dallas County, Texas
In Cause No.
F13-21294-L
APPELLANT’S BRIEF
Counsel of Record:
Lynn Richardson Nanette Hendrickson
Chief Public Defender Assistant Public Defender
Dallas County, Texas State Bar No. 24081423
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Katherine A. Drew Dallas, Texas 75207-4399
Chief, Appellate Division (214) 653-3582 (phone)
Dallas County Public Defender’s Office (214) 653-3539 (fax)
Nanette.Hendrickson@
dallascounty.org
Attorneys for Appellant
LIST OF PARTIES
APPELLANT
John Brandon Burks
DEFENSE COUNSEL AT TRIAL
Kobby T. Warren
777 Main St., Ste. 600
Fort Worth, TX 76102
STATE’S ATTORNEY AT TRIAL
Herschel Woods
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
APPELLANT’S ATTORNEY ON APPEAL
Nanette Hendrickson
Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
STATE’S ATTORNEY ON APPEAL
Susan Hawk (or her designated representative)
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
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TABLE OF CONTENTS
LIST OF PARTIES ................................................................................................... 1
TABLE OF CONTENTS .......................................................................................... 2
INDEX OF AUTHORITIES..................................................................................... 3
STATEMENT OF THE CASE ................................................................................. 4
ISSUES PRESENTED.............................................................................................. 4
STATEMENT OF FACTS ....................................................................................... 4
SUMMARY OF ARGUMENT ................................................................................ 6
ARGUMENT ............................................................................................................ 6
Point of Error, Restated............................................................................................. 6
The trial court erred by admitting State’s Exhibit 20 because it was
not properly authenticated...............................................................................6
PRAYER ................................................................................................................. 10
CERTIFICATE OF SERVICE ............................................................................... 10
CERTIFICATE OF COMPLIANCE ...................................................................... 11
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INDEX OF AUTHORITIES
Cases
Blankenbeker v. Texas Dep’t of Pub.Safety,
990S.W.2d813(Tex. App.—Austin 1999, pet. ref’d)........................................8, 9
Druery v. State,
225 S.W.3d 491 (Tex. Crim. App. 2007) ...............................................................7
Tienda v. State,
358 S.W.3d 633 (Tex. Crim. App. 2012) ..............................................................8
Rules
TEX. R. EVID. 901(a) ..................................................................................................7
TEX. R. EVID. 901(b)(1) .............................................................................................8
TEX. R. EVID. 902 .......................................................................................................8
TEX. R. EVID. 902(4) ....................................................................................... 8, 9, 10
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TO THE HONORABLE COURT OF APPEALS:
COMES NOW Appellant, John Brandon Burks, and submits this brief on
appeal from a conviction in Criminal District Court Number 5 of Dallas County,
Texas, the Honorable Carter Thompson, judge presiding.
STATEMENT OF THE CASE
Appellant was charged with failure to stop and render aid in Criminal
District Court Number 5 in Dallas County, Texas. (CR: 12). Appellant pled guilty
to the primary charge in the indictment. (RR1: 7). Following a punishment hearing,
the trial court sentenced Appellant to 8 years’ incarceration. (CR: 53; RR1: 111).
Judgment was entered by the trial court on October 17, 2014. (CR: 53). A notice of
appeal was timely filed. (CR: 61).
ISSUES PRESENTED
Point of Error
The trial court erred by admitting State’s Exhibit 20 because it was not properly
authenticated.
STATEMENT OF FACTS
On December 28, 2010, Jaime Stanley was driving to her home in
Duncanville from her sister’s house. (RR1: 53). Jaime was 34 weeks and six days
pregnant at that time. (RR1: 53-54). While driving down Main Street in
Ducanville, she saw a vehicle’s headlights ahead of her coming directly towards
her car. (RR1: 54-55). She honked her horn, but the vehicle, later determined to be
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a truck, was still coming at her. (RR1: 55). Jaime only had enough time to honk
and brace herself on the steering wheel before the truck crashed into her. (RR1:
55). Jaime was able to slightly turn the wheel before the crash, but the truck did not
appear to take any evasive action. (RR1: 55). Jaime never saw the driver of the
pickup. (RR1: 58). The pickup was empty when the police arrived on the scene of
the accident. (RR1: 58).
Jaime was taken to the hospital where it was determined both of her arms
were broken. (RR1: 59). Initially, the baby’s heartbeat was present, but his vitals
became abnormal soon after arrival at the hospital. (RR1: 59). After an emergency
C-section, the baby was taken to the NICU unit and treated for respiratory
problems. (RR1: 60). The baby was then in ICU for 17 days due to complications
with eating and respiration. (RR1: 60). After leaving the hospital, the baby
experienced developmental delays necessitating speech, physical, and occupational
therapy. (RR1: 61). However, in time, the baby regained his health. (RR1: 61).
Jaime had physical therapy on her wrists and left leg. (RR1: 60).
In 2012, Appellant admitted to driving the vehicle and his insurance settled a
civil claim against him. (RR1: 63). Appellant was charged with a crime years
later. (RR1: 63).
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SUMMARY OF ARGUMENT
The trial court erred by admitting State’s Exhibit 20 because it was
improperly authenticated. The exhibit was not sponsored by a witness with
personal knowledge of the contents nor was it properly certified as a self-
authenticating document pursuant to the Texas Rules of Evidence. Therefore, the
trial court abused its discretion.
ARGUMENT
Point of Error, Restated
The trial court erred by admitting State’s Exhibit 20 because it was not properly
authenticated.
Facts
The State introduced State’s Exhibit 20 through Lori Fuller, a “technical
supervisor with the Southwestern Institute of Forensic Sciences...” (RR1: 35).
Fuller maintained “the integrity of the Texas Breath Alcohol Program” in Area 23
which included Dallas, Collin, and Denton Counties. (RR1: 35). Fuller’s also
duties included training police departments on how to use the Intoxilyzer 5000.
(RR1: 35). During Fuller’s testimony, the State introduced an exhibit purporting to
be Appellant’s Intoxilyzer test-results on January 20, 2011. (RR1: 36). Fuller
testified that State’s Exhibit 20 was an accurate copy of the test-result from
Appellant’s breath test. (RR1: 36). However, on cross examination, Fuller testified
that she did not actually administer the test to Appellant. (RR1: 37-38). Instead, the
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actual operator of the machine was Officer Johnson, an officer with Dallas Police
Department. (RR1: 38). Appellant objected to the admission of State’s Exhibit 20
based on an improper predicate. (RR1: 38). The State’s responded that the exhibit
was a business record kept in the normal course of business. (RR1: 38). The trial
court overruled the objection. (RR1: 39).
State’s Exhibit 20 is signed only by the operator, Officer Johnson of the
Dallas Police Department. (RR1: 38; State’s Exhibit 20). There are no marks
certifying the exhibit as being filed or kept with the Department of Transportation
or any other public office. (State’s Exhibit 20).
Standard of Review
The admission of evidence is reviewed under an abuse of discretion
standard. Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). The
reviewing court will affirm the trial judge’s ruling if it is within the “zone of
reasonable disagreement.” Id.
Law
Authentication of an item requires that the evidence show the item is what it
purports to be. TEX. R. EVID. 901(a). There are several ways in which to
authenticate a piece of physical evidence: “…by direct testimony from a witness
with personal knowledge, by comparison with other authenticated evidence, or by
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circumstantial evidence.” Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App.
2012) (citing TEX. R. EVID. 901(b)(1)).
A document may also be self-authenticating if it meets the requirements of
Rule 902. TEX. R. EVID. 902. In Blankenbeker v. Texas Dep’t of Pub. Safety, the
defendant challenged the admission of the test-results printout from the intoxilyzer
for lack of authentification. Blankenbeker v. Texas Dep’t of Pub. Safety, 990
S.W.2d 813, 816 (Tex. App.—Austin 1999, pet. ref’d). An official from the
Department of Transportation testified the document was from their files, and the
document itself was “stamped with the DPS seal and signed with an attestation that
the printout [was] contained in DPS files.” Id.
The defendant argued that since the police department created the form and
administered the test, that police officer should authenticate the test-result. Id.
However, the Court reasoned that “Rule of Evidence 902(4) provides that extrinsic
evidence of authenticity as a condition precedent to admissibility is not required
with respect to . . . [a] copy of an official record or report or entry therein, or of a
document authorized by law to be recorded or filed and actually recorded or filed
in a public office . . . by certificate complying with paragraph (1) . . . of this rule.”
Id.,citing TEX. R. EVID. 902(4) (emphasis added). Therefore, in order to be self-
authenticating, the intoxilyzer test-result must be certified as being from a public
8
entity, i.e., the Department of Transportation or sponsored by an officer from a
public entity testifying to the same information. Id.
Application of the Law to the Facts
State’s Exhibit 20 was the test-result from the Intoxilyzer 5000 used to
administer Appellant a breath test after the accident. The State introduced State’s
Exhibit 20 through Lori Fuller who maintained the Intoxilyzer 5000 and trained
police departments to use the machine. The State attempted to show the test-result
was self-authenticating through Fuller’s testimony that she maintained custody of
at least one copy of every document created by the Intoxilyzer 5000 in her area.
(RR1: 35-36). However, the record does not establish the document was filed with
a public entity or office in the regular course of business as required by Rule
902(4). (RR1: 35); TEX. R. EVID. 902(4).
Fuller testified she was an employee of the Southwestern Institute of
Forensic Sciences(SWIFS), a crime lab in Dallas, Texas. (RR1: 35). There is
nothing in the record showing that SWIFS is a public entity, such as the
Department of Transportation, or that Fuller was an officer of any public entity.
Furthermore, State’s Exhibit 20 has no markings on it certifying it was filed or kept
in the regular course of business with any public entity. Rather, the only signature
on the test-result belonged to Officer Johnson of the Dallas Police Department who
administered the test to Appellant. (RR1: 38; State’s Exhibit 20). Officer Johnson
9
testified, but the State did not offer the test-result through his testimony. Since
State’s Exhibit 20 was not admitted through Officer Johnson, who had personal
knowledge of the test-result, nor was the document self-authenticating, the proper
predicate was not met pursuant to Rule 902(4) for its admission. TEX. R. EVID.
902(4). The trial court abused its discretion meriting a new punishment hearing.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
vacate the judgment and grant Appellant a new punishment hearing. Appellant
further prays for any relief to which he may be entitled.
Respectfully submitted,
/s/ Nanette Hendrickson
Lynn Richardson Nanette Hendrickson
Chief Public Defender Assistant Public Defender
Dallas County, Texas State Bar No. 24081423
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Katherine A. Drew Dallas, Texas 75207-4399
Chief, Appellate Division (214) 653-3582 (phone)
Dallas County Public Defender’s Office (214) 653-3539 (fax)
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief was served on the
Dallas County Criminal District Attorney’s Office (Appellate Division), 133 N.
Riverfront Blvd., 10th Floor, Dallas, TX 75207 by hand delivery on May 29,
2015.
/s/ Nanette Hendrickson
Nanette Hendrickson
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CERTIFICATE OF COMPLIANCE
I certify that the foregoing brief contains 1,834 words.
/s/ Nanette Hendrickson
Nanette Hendrickson
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John Brandon Burks v. State
Combined Opinion