PD-1461-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/14/2015 12:00:00 AM
Accepted 12/15/2015 1:31:53 PM
ABEL ACOSTA
CAUSE NO. PD-1461-15 CLERK
IN THE COURT OF CRIMINAL APPEALS
FOR THE
STATE OF TEXAS
JACOB WESLEY FAUDI, APPELLANT
V.
STATE OF TEXAS, APPELLEE
PETITION FOR DISCRETIONARY REVIEW
FROM THE 19TH JUDICIAL DISTRICT COURT
MCLENNAN COUNTY, TEXAS
TRIAL COURT CASE NUMBER 2011-2270-C1
HON. RALPH STROTHER, JUDGE PRESIDING
AND IN THE SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
APPELLATE CAUSE NUMBER 07-13-00351-CR
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
DENTON B. LESSMAN
TX BAR NO. 24042474
December 15, 2015 100 N. 6TH STREET, STE. 702
WACO, TX, 76701
TELEPHONE: (254) 776-4544
FACSIMILE: (254) 776-4551
EMAIL DLESSMANATTY@AOL.COM
ATTORNEY FOR APPELLANT
ORAL ARGUMENT IS DEFERRED TO THE COURT
IDENTITY OF PARTIES AND COUNSEL
JACOB WESLEY FAUDI APPELLANT
STATE OF TEXAS APPELLEE
DENTON B. LESSMAN APPELLATE ATTORNEY FOR
100 N. 6TH STREET, STE. 702 APPELLANT
WACO, TEXAS 76701
LYLE GRIPP TRIAL ATTORNEY FOR
100 N. 6TH STREET, STE. 703 APPELLANT
WACO, TEXAS 76701
ABELINO “ABEL REYNA TRIAL & APPLELLATE
501 WASHINGTON AVE. ATTORNEY FOR APPELLEE /
WACO, TEXAS 76701 CRIMINAL DISTRICT
ATTORNEY FOR MCLENNAN
COUNTY, TEXAS
TABLE OF CONTENTS
Contents
IDENTITY OF PARTIES AND COUNSEL ................................................... 2
TABLE OF CONTENTS ............................................................................... 2
STATEMENT REGARDING ORAL ARGUMENT ........................................ 3
STATEMENT OF THE CASE ...................................................................... 3
STATEMENT OF PROCEDURAL HISTORY .............................................. 4
REASONS FOR GRANTING REVIEW ........................................................ 4
ARGUMENT................................................................................................. 4
2
PRAYER ...................................................................................................... 5
CERTICATE OF SERVICE .......................................................................... 6
CERTIFICATE OF COMPLIANCE ............................................................... 6
STATEMENT REGARDING ORAL ARGUMENT
The Petitioner, Jacob Wesley Faudi, requests to present oral argument
on this case if the Court determines it to be beneficial in its consideration.
STATEMENT OF THE CASE
Faudi was convicted in the Honorable 19th District Court of McLennan
County, Texas of the Indecency with a Child by Contact Counts I & II and
Indecency with a Child by Exposure Counts III & IV and sentenced to
incarceration in TDCJ for a period of 20 years on Count I, 10 years on Count
II, concurrently, and 10 years on Count III to be served consecutively to
Counts I & II. (C.R. Vol. I 87-89; 108-117).
Faudi properly appealed the final conviction to the Seventh Court of
Appeals1 wherein Faudi raised one issue asserting that The District Court
erred by excluding evidence essential to his defense, namely CPS records
providing evidentiary support of his primary defensive theory that the child
was never alone with him.
1
The case was transferred from the Tenth Court of Appeals to the Seventh Court via order of the Texas Supreme
Court.
3
The Court of Appeals affirmed the conviction.
STATEMENT OF PROCEDURAL HISTORY
The Seventh Court of Appeals opinion affirming the case was issued
on October 8, 2015. No motion for rehearing was filed.
QUESTION PRESENTED FOR REVIEW
The Seventh Court of Appeals incorrectly analyzed Faudi’s offer of
proof in the Trial Court thus establishing a deviant standard by which future
cases are to be governed.
REASONS FOR GRANTING REVIEW
Faudi asserts that the reason for granting review is that the Tenth Court
of Appeals has:
1) determined an important question of law in a way that conflicts with this
court and other court of appeals’ decision on the same issue, Tex. R. App.
Proc. Rule 66.3(a) & (c); and,
2) so far departed from the accepted and usual course of judicial proceedings
as to call for an exercise of the Court of Criminal Appeals’ power of
supervision. Tex. R. App. Pro. Rule 66.3(f).
ARGUMENT
Faudi asserts that the Court of Appeals’ incorrect analysis is
evidenced by the following statement.
4
We next note appellant offered the entire thirteen-page DFPS
report into evidence without explaining the specific purposes for
which it was offered. While appellant asserts on appeal he
needed the report in part for impeachment purposes, he did not
voice that purpose to the trial court during discussion of its
admissibility. The trial court thus did not abuse its discretion by
denying admission of the report for its impeachment value.
Opinion at page 4.
However, a review of the record (Bill of Proof) clearly shows
that the purpose of the introduction of the evidence was to impeach
the prior testimony of the alleged child victim. The State even stated
“well I don’t think that contradicts her statement.” (R.R. vol. 6, p. 123).
The Court of Appeals erred in its relevancy analysis.
PRAYER
WHEREFORE PREMISES CONSIDERED, Faudi prays that this
Honorable Court will grant this petition.
Respectfully Submitted,
Law Office of Denton B. Lessman
100 N. 6th Street, Ste. 702
Waco, Texas 76701
Tel: (254) 776-4544
Fax: (254) 776-4551
By:
Denton B. Lessman
TX Bar No. 24042474
Attorney for Appellant
5
CERTICATE OF SERVICE
I hereby certify that a copy of this Petition for Discretionary Review was
served on the State Prosecuting Attorney and the Criminal District Attorney
of McLennan County via facsimile on December 14, 2015.
Denton B. Lessman
CERTIFICATE OF COMPLIANCE
I hereby certify in accordance with Rule 9.4(i)(3) that this entire
document, including those excludable under Rule 9.4(i)(1), has a total of 713
words and that this documents was produced using Microsoft Word 2013.
Denton B. Lessman
APPENDIX
6
In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00351-CR
JACOB WESLEY FAUDI, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 19th District Court
McLennan County, Texas
Trial Court No. 2011-2270-C1, Honorable Ralph T. Strother, Presiding
October 8, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Jacob Wesley Faudi appeals from his convictions by jury of one count
of indecency with a child by contact1 and two counts of indecency with a child by
exposure,2 and the resulting sentences of twenty, and ten, years of imprisonment,
1
TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2014).
2
TEX. PENAL CODE ANN. § 21.11(a)(2) (West 2014).
respectively.3 Through one issue, appellant contends the trial court erred by excluding
an exhibit he offered at trial. We will affirm.
Background
Appellant does not challenge the sufficiency of the evidence to support his
convictions, so we will set forth only those facts necessary to his appellate issue.
Via indictment, appellant was charged with four counts of indecency with a child,
by contact and by exposure. During trial, the State abandoned one of the counts
alleging indecency by contact. The six-year-old victim testified. The State also offered
the testimony of an investigating police officer, the victim’s mother, and a forensic
interviewer. The interviewer’s report also was admitted into evidence.
Appellant also testified, adamantly denying he committed any of the acts alleged.
He acknowledged he had known the victim’s father for “a long time” and had known the
victim from the time she was a toddler. He also admitted he believed someone sexually
abused the victim but denied he was the person who did so. During his case-in-chief,
appellant sought admission of a thirteen-page investigative report created by the Texas
Department of Family and Protective Services (“DFPS report”). The State objected on
several grounds, including relevancy and hearsay. Appellant argued that the report was
the “crux” of his case because it contained a statement that “[the victim] stated that she
3
The sentences for indecency by contact and one count of indecency by exposure are to be
served concurrently. The ten-year sentence for the additional count of indecency by exposure is to begin
when the concurrent sentences cease to operate.
2
has never been left in the care of Jacob Faudi.”4 Appellant contended the statement
shows he was never alone with the victim, so it was not possible he engaged in the
sexual conduct of which he was accused.
After hearing argument from both counsel and the State, the court denied
admission of the document. The trial continued, after which the jury found appellant
guilty of one count of indecency with a child by contact and two counts of indecency
with a child by exposure and assessed punishment for each. This appeal followed.
Analysis
On appeal, as he did at trial, appellant argues the DFPS report was properly
admissible as a public record under Rule of Evidence 803(8). See TEX. R. EVID. 803(8).5
He contends on appeal that the exclusion of the DFPS report denied him the
opportunity to present his case because his defensive theory was dependent on
4
This statement appears in the witness summary of the Department investigator’s face-to-face
interview with the victim. The report states the victim “indicated that [she] does not have any contact with
the person that hurt her when she [is] at her mom’s or dad’s house. She stated that she has never been
left in the care of [appellant]. She stated that he was just staying the weekend with her dad because her
dad is married to [appellant’s] sister.”
5
Rule 803(8) reads as follows:
Public Records. --A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in
a criminal case, a matter observed by law enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
(B) the opponent fails to demonstrate that the source of information or other circumstances
indicate a lack of trustworthiness.
3
information contained within it. Without it, he argues, he was “denied his opportunity to
examine [the investigator who created the report], to use the statements contained
therein to impeach multiple witnesses, and to present the information, observations, and
factual findings therein to the jury.”
We review the trial court's decision to admit or exclude evidence under an abuse
of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)
(citing Green v. State, 934 S.W.2d 92, 104 (Tex. Crim. App. 1996)). The trial court does
not abuse its discretion unless its determination lies outside the zone of reasonable
disagreement. Martinez, 327 S.W.3d at 736. We uphold the trial court's ruling if it was
correct on any theory reasonably supported by the evidence and applicable to the case.
Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). After review of the
record, we conclude the trial court did not abuse its discretion by excluding the report.
We first reiterate that appellant testified at trial and denied the allegations against
him. Several other witnesses also testified on his behalf. While the statement in the
DFPS report might be seen as supportive of his denial he committed the offenses, we
do not agree the record shows the statement was the “crux” of appellant’s case at trial.
We next note appellant offered the entire thirteen-page DFPS report into
evidence without explaining the specific purposes for which it was offered. While
appellant asserts on appeal he needed the report in part for impeachment purposes, he
did not voice that purpose to the trial court during discussion of its admissibility. The
trial court thus did not abuse its discretion by denying admission of the report for its
impeachment value. See Ramirez v. State, No. 14-06-00538-CR, 2007 Tex. App. LEXIS
4
5825, at *23-24 (Tex. App.—Houston [14th Dist.] July 26, 2007, pet. ref’d) (mem. op. not
designated for publication) (similar analysis).
Finally, the report included portions that the trial court could have determined to
be inadmissible.6 As other courts have held in similar circumstances, the trial court was
not obligated to sift through the entire report to separate the admissible evidence from
the inadmissible. See August v. State, No. 02-04-00484-CR, 2006 Tex. App. LEXIS
3829, at *10 (Tex. App.—Fort Worth May 4, 2006, pet. ref’d) (mem. op., not designated
for publication) (citing Sauceda v. State, 129 S.W.3d 116, 124 (Tex. Crim. App. 2004)).
That is the obligation of the party offering the evidence. August, 2006 Tex. App. LEXIS
at *10. Because appellant did not limit his offer to admissible portions of the report, the
trial court did not err by excluding the entire report. Id.; see Weiss v. State, No. 02-07-
00390-CR, 2009 Tex. App. LEXIS 9453, at *26 (Tex. App.—Fort Worth Dec. 10, 2009),
reh’g denied, No. 02-07-00390-CR, 2010 Tex. App. LEXIS 410 (Tex. App.—Fort Worth
Jan. 14, 2010) (trial court did not err in excluding police report when appellant offered
the report in its entirety and report contained statements that would have been subject
to exclusion).
6
See Crane v. State, 786 S.W.2d 338, 354 (Tex. Crim. App. 1990) (holding that even if the tape
itself were admissible under a hearsay exception, any statements made in that recording were subject to
the hearsay rule); Trussell v. State, 585 S.W.2d 736, 739 (Tex. Crim. App. 1979) (finding that if the report
were offered for its truth, and not just for impeachment purposes, then statements contained in the report
were hearsay and inadmissible).
5
Conclusion
We resolve appellant’s issue against him and affirm the judgment of the trial
court.
James T. Campbell
Justice
Do not publish.
6