PD-0246-15 & PD-0247-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/6/2015 2:25:23 PM
APRIL 13, 2015 Accepted 4/13/2015 3:27:29 PM
ABEL ACOSTA
NO. PD-0246-15 CLERK
NO. PD-0247-15
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AT AUSTIN
_________________________
VALENTIN JUNIOR HERNANDEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________
On appeal in Cause Nos. F12-61625-H & F12-61626-H
from the Criminal District Court No. 1
Of Dallas County, Texas
And on Petition for Discretionary Review from
the Fifth District of Texas at Dallas
In Cause Nos. 05-13-00478-CR & 05-13-00479-CR
_________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_________________________
Counsel of Record:
Lynn Richardson Nanette Hendrickson
Chief Public Defender Assistant Public Defender
Dallas County Public Defender’s Office
Katherine A. Drew State Bar Number: 24081423
Chief, Appellate Division 133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-399
(214) 653-3550 (telephone)
(214) 653-3539 (fax)
ATTORNEYS FOR PETITIONER/APPELLANT
LIST OF PARTIES
TRIAL COURT JUDGE
Robert Burns, Presiding Judge
APPELLEE
Valentin Junior Hernandez
APPELLEE’S ATTORNEYS
AT TRIAL
Stanley Mays
2214 Main St.
Dallas, TX 75202
ON APPEAL
Nanette Hendrickson, State Bar No. 24081423
Assistant Public Defender
Dallas County Public Defender’s Office
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399
STATE’S ATTORNEYS
AT TRIAL
Leah Thomson, State Bar No. 24036177
Brandi L. Wade, State Bar No. 24065835
ON APPEAL
Anne B. Wetherholt, State Bar No. 21235300
Assistant District Attorney
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
ii
TABLE OF CONTENTS
LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES ....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 2
STATEMENT OF FACTS ........................................................................................ 2
GROUND FOR REVIEW ......................................................................................... 2
Whether the Court of Appeals erred in holding that the best
evidence rule does not apply to testimony regarding the contents of
a document....................................................................................................... 2
ARGUMENT ............................................................................................................. 2
FACTS ............................................................................................................. 3
APPLICABLE LAW ....................................................................................... 4
THE COURT OF APPEALS’ HOLDING IS INCORRECT ......................... 5
CONCLUSION ............................................................................................... 9
PRAYER FOR RELIEF ............................................................................................ 9
CERTIFICATE OF SERVICE .................................................................................. 9
CERTIFICATE OF COMPLIANCE .......................................................................10
iii
INDEX OF AUTHORITIES
Cases
Ali v. State,
26 S.W.3d 82 (Tex. App.—Waco 2000, no pet.) ..............................................7
Englund v. State,
946 S.W.2d 64 (Tex. Crim. App. 1997) ................................................... 4, 5, 6
Hernandez v. State,
No. 05-13-00478-CR & 05-13-00479-CR, 2014 Tex. App. LEXIS 996 (Tex.
App.—Dallas October 22, 2014).......................................................... 2, 6, 7, 8
Overton v. State,
490 S.W.2d 556 (Tex. Crim. App. 1973) ......................................................3, 4
Ramsey v. Jones Enterprises,
810 S.W.2d 902 (Tex. App.—Beaumont 1991) ...............................................5
Sharp v. State,
707 S.W.2d 611 (Tex. Crim. App. 1986) ......................................................6, 7
Other Authorities
Weinstein, J. B., Berger, M. A., and McLaughlin, J.M. Weinstein's Evidence
Manual. 2nd Ed. Chicago: M. Bender, 1995. 1002. Print.................................5
Rules
TEX. R. APP. P. 68.4 (i) .........................................................................................2
TEX. R. EVID. 1002................................................................................................4
iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Valentin Junior Hernandez, Appellant, respectfully presents to this
Honorable Court his Petition for Discretionary Review of the Fifth District
Court of Appeals’ Opinion affirming the trial court’s judgment.
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument because this case presents a question
of law on issues having statewide impact and possible reoccurrence. Oral
argument may be helpful to the members of this Court in the resolution of
the issues presented.
STATEMENT OF THE CASE
Appellant was charged by indictment with the offense of aggravated
robbery with a deadly weapon in each case. (CR1: 16; CR2: 161). Appellant
pled not guilty to the charges in the indictments. (RR2: 6). A trial was held
before a jury, and the jury found Appellant guilty of the offenses. (RR3:
162). After a hearing on punishment, the jury assessed punishment at fifteen
years to serve on trial case number F12-61626 and twenty years to serve on
trial case number F12-61625. (RR4: 121). The trial court ordered both cases
to run concurrent to each other. (RR4: 121). Judgment was entered by the
trial court on April 3, 2013. (CR1: 42; CR2: 38). Notice of appeal was
timely filed. (CR1: 43; CR2: 47).
1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On February 3, 2015, in an unpublished opinion authored by Justice
Bridges, the Court of Appeals for the Fifth District of Texas affirmed the
trial court’s judgment. Hernandez v. State, No. 05-13-00478-CR & 05-13-
00479-CR, 2014 Tex. App. LEXIS 996, * 11 (Tex. App.—Dallas October
22, 2014). This Court granted an extension of time to file a Petition for
Discretionary Review, which is timely if filed on or before April 6, 2015.
STATEMENT OF FACTS
The facts of this case, which are extensive, are adequately recited in
the Court of Appeal’s opinion, which is attached to this Petition as required
by TEX. R. APP. P. 68.4 (i).
Suffice it to say that Appellant was charged with and convicted of
aggravated robbery with a deadly weapon in two separate cases. (CR1: 42;
CR2: 38; RR3: 162).
GROUND FOR REVIEW
Whether the Court of Appeals erred in holding that the best evidence
rule does not apply to testimony regarding the contents of a document.
ARGUMENT
The Court of Appeals incorrectly applied the standard that “the [best
evidence] rule applies only where the purpose of the offered evidence is to
2
prove the contents of the document.” Overton v. State, 490 S.W.2d 556, 559
(Tex. Crim. App. 1973).
FACTS
Officer Cory Cook testified to his prior contacts with Appellant during
the punishment phase of the trial. (RR4: 22-31). Cook testified that he knew
Appellant as a child, but before he started committing crimes. (RR4: 28).
Otherwise, Cook’s only other interaction with Appellant was during an
investigation into an aggravated assault Appellant in which Appellant was a
suspect. (RR4: 24). Cook interviewed Appellant, but could not recall if
Appellant claimed any particular gang membership at that time. (RR4: 24).
Cook testified that the Carrollton Police Department kept gang cards
regarding prior contacts with gang members. (RR4: 24, 28). Cook also
testified that the Carrollton Police Department had gang cards relating to
Appellant and his activities. (RR4: 28). Cook did not state that he was the
custodian of the records, and the gang cards were not admitted as business
records. (RR4: passim). Appellant objected to Cook testifying to the content
of the cards based on the best evidence rule. (RR4: 29). The trial court
overruled the objection. (RR4: 29). The gang cards were not produced for
inspection nor were they admitted during the trial. (RR4: passim).
Furthermore, Appellant’s trial counsel stated that he had not seen them.
3
(RR4: 29). Over Appellant’s objection, Cook testified, from memory, that
the gang cards stated Appellant had contact with the Carrollton Police for
fighting, proclaiming he was a gang member, and intimidating his
neighborhood as part of a gang. (RR4: 29-30).
APPLICABLE LAW
The best evidence rule states that to “prove the content of a writing,
recording, or photograph, the original writing, recording, or photograph is
required” except where allowed under the law. TEX. R. EVID. 1002. The rule
is applicable where the proposed evidence is needed to prove the contents of
the item. Overton v. State, 490 S.W.2d 556, 559 (Tex. Crim. App. 1973).
Englund v. State provides the initial purpose behind the best evidence
rule:
First, we review the rationale for the common-law rule
on which Rule 1002 was based.
“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.
4
(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.”
Englund v. State, 946 S.W.2d 64 (Tex. Crim. App. 1997)(emphasis added),
(quoting J. Weinstein, M. Berger & J. McLaughlin, Weinstein’s Evidence P
1002 (1995)).
The Beaumont Court of Appeals held it was error to allow a witness
to testify regarding the content of documents regarding title to real property.
Appellee’s expert gave hearsay testimony as to the existence
and content of documents in writing, but such documents were
never produced and admitted into evidence. This is precisely
what TEX. R. CIV. EVID. 1002 was adopted to prevent. The
best evidence of the content of documents is the documents
themselves. The trial court erred in admitting hearsay testimony
to prove up the content of documents without a proper showing
that the subject documents were unavailable through no fault or
failure on the part of the party offering same.
Ramsey v. Jones Enterprises, 810 S.W.2d 902 (Tex. App.—Beaumont
1991).
THE COURT OF APPEALS’ HOLDING IS INCORRECT
The Court of Appeals’ decision is in conflict with the holding of this
Court and other Courts of Appeals.
5
The case at bar demonstrates the exact purpose for the best evidence
rule, as stated in Englund.
“(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.”
Englund, 946 S.W.2d 64 (Tex. Crim. App. 1997) (emphasis added). This
Court has ruled that the best evidence rule prevents a witness from
misrepresenting the content of a document while testifying because the
parties can inspect the document and impeach the testimony, if needed. The
best evidence rule was pertinent in the case at bar since it would have
ensured the veracity of Officer Cook’s testimony and allowed defense
counsel to impeach him if the gang cards were present. Since Officer Cook’s
testimony was elicited to prove the contents of the gang cards, the best
evidence rule was applicable in Appellant’s case.
Furthermore, in its opinion, the Court of Appeals stated that the “best
evidence rule does not apply when the item in question is not admitted into
evidence to prove its contents.” Hernandez, 05-13-00479-CR, 2015 Tex.
App. LEXIS 996, at *3 (quoting Sharp v. State, 707 S.W.2d 611, 618 (Tex.
Crim. App. 1986)). In Sharp, the issue was whether the trial court erred by
allowing the prosecutor to question the witness using a transcript of a tape
6
recording as opposed to the actual recording itself. Id. Both items of
evidence were present at trial and the State did not oppose using the tape. Id.
Therefore, the Court of Criminal Appeals ruled that since neither item was
admitted as evidence, the best evidence rule did not apply. Id. Additionally,
the Court ruled the best evidence rule only applied to documents, not tape
recordings. Id.
Sharp differs from the case at bar because the gang cards were not
present during the hearing; therefore, they could not be entered as evidence.
Even if they were present, the trial court overruled Appellant’s objection. As
such, the State did not seek to admit them as evidence. Furthermore, the
evidence in Sharp was not documentary evidence whereas it was in the
present case. Id.
The Court of Appeals in its opinion also cited Ali v. State as holding
that “the best evidence rule does not apply if the document and contents in
question are only collaterally related to the issues in the case.” Hernandez,
05-13-00479-CR, 2015 Tex. App. LEXIS 996, at *3-4 (quoting Ali v. State,
26 S.W.3d 82, 88 (Tex. App.—Waco 2000, no pet.)). However, the gang
cards were not collateral to Appellant’s case. During the trial on punishment,
the State was asking Officer Cook about his knowledge regarding
Appellant’s gang status. The State specifically asked if he knew Appellant
7
was in a gang based on his knowledge of Appellant as a child and during
Cook’s time as an officer. Cook specifically said that Appellant was not in
trouble as a child. (RR4: 28). Cook also investigated Appellant as a suspect
in a prior offense. (RR4: 23-4). When specifically asked by the State about
his claimed gang status at that time, Cook stated he could not recall if
Appellant told him during the investigation if he was in a gang or not. (RR4:
24).
The State then asked Cook about the content of the gang cards
regarding Appellant’s gang status. (RR4: 24, 28). In that regard, the State
asked Cook, “Based on his gang card, what types of contacts has he had with
the gang unit?” (RR4: 29). Contrary to the Court of Appeal’s opinion which
stated this only provided “background relating to the ascertainment of
appellant’s gang affiliation,” this question specifically references
Appellant’s gang affiliation, the exact issue the State had been asking about
during the entirety of Officer Cook’s testimony. Hernandez, 05-13-00479-
CR, 2015 Tex. App. LEXIS 996, at *7. Therefore, the gang card content was
not collateral, but the exact issue the State sought to prove through Cook’s
testimony.
8
CONCLUSION
The Court of Appeals’ decision to affirm the trial court’s ruling is
contradictory to the rulings of this Court. This Court should grant
discretionary review to resolve this discrepancy between the Court of
Appeals’ ruling and the ruling of this Court.
PRAYER FOR RELIEF
For the reasons herein alleged, Appellant prays this Court grant this
petition and, upon reviewing the judgment entered below, remand the case for a
new trial.
Respectfully submitted,
Lynn Richardson
Chief Public Defender
/s/ Nanette Hendrickson
Nanette Hendrickson
Assistant Public Defender
State Bar No. 24081423
CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of April, 2015, a true copy of the
foregoing petition for discretionary review was served on Anne B. Wetherholt,
Assistant District Attorney, Dallas County Criminal District Attorney’s Office,
133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic
delivery at DCDAAppeals@dallascounty.org and hand delivery; and was also
served on, Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046,
Austin, Texas, 78711 by electronic delivery and by depositing same in the
United States Mail, Postage Prepaid.
/s/ Nanette Hendrickson
Nanette Hendrickson
9
CERTIFICATE OF COMPLIANCE
I certify that the foregoing Petition for Discretionary Review contains
2,376 words.
/s/ Nanette Hendrickson
Nanette Hendrickson
10
APPENDIX