Dixon v. State

DUNCAN, Justice,

dissenting.

I respectfully dissent. The evidence, with or without State’s Exhibit 1, is plainly sufficient to support Dixon’s conviction, and the trial court properly refused Dixon’s request for a mistrial. I would therefore affirm the judgment.

State’s Exhibit 1

In his second point of error, Dixon complains the trial court erred in admitting State’s Exhibit 1, an otherwise inadmissible document, as a summary in violation of Texas Rule of Criminal Evidence 1006. However, as demonstrated below, Dixon’s counsel plainly waived any error in admitting the exhibit as a summary by failing to object on this ground until long after the exhibit was admitted. See Tex.R.App. P. 52(a); see also, e.g., Garcia v. State, 887 S.W.2d 862, 877 (Tex.Crim.App.1994), cert. denied, — U.S. -, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). The only preserved complaint before this court, therefore, is whether the underlying records would be admissible as a business record of The Psychological Corporation. I would hold that the exhibit was admissible and overrule Dixon’s second point of error.

Factual and Procedural Background Pertinent to State’s Exhibit 1

At the time of trial, Ben Kucinski was the Director of Information Systems at The Psychological Corporation. As such, Kucinski has approximately fifteen employees reporting to him, and they are responsible for all micro-processor equipment owned by the company, as well as the data base architecture and programming. Kucinski is therefore in charge of maintaining an inventory of all of the company’s computer equipment. He is also the custodian of the computer inventory records, which are kept in the regular course of business and the entries which are made by persons with knowledge of the information at or near the time the equipment is acquired by the company. At just the Zarzamora building (one of the company’s four locations), the company maintains approximately eighty computers.

State’s Exhibit 1 is a list of computer hardware (make, model, serial number, and value) and software (type, quantity, and value) that was missing from the company’s Zarzamora building on August 9, 1993 — the *197day before a security guard saw Dixon leaving the building with an office chair loaded with a big, brown box. The information reflected on State’s Exhibit 1 was collected by two of Kucinski’s staff members, and typed by his secretary, at Kucinski’s direction. Kucinski reviewed the list and signed it.

After Kucinski explained the preparation of State’s Exhibit 1, the State offered it into evidence. Dixon’s attorney objected on the sole ground that it was hearsay. The trial judge overruled the objection, stating that she would “admit it as a summary. State’s Exhibit No. 1 is admitted as a business document that he referred to.” Later, during cross-examination of Kucinski, Dixon’s counsel asked that, “[i]f [State’s Exhibit 1] is being offered or accepted as a summary,” then it be partially redacted. The trial court granted the request, and the trial proceeded. It was not until court had been recessed for the day that Dixon’s counsel objected to the admission of State’s Exhibit 1 as a summary. The trial judge overruled the objection, stating “[y]ou are too late.” At no point in the trial court or in this court has Dixon complained of the admission of the testimony relating to the information reflected on State’s Exhibit 1.

Standard of Review

A trial court’s ruling on the admissibility of evidence is subject to an abuse of discretion standard of review. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). An abuse of discretion will be found “only when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993). Even if the trial court’s reason for its ruling is incorrect, the ruling will be upheld if it is permissible under any theory applicable to the case. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990) (en banc).

Admissibility

Effective September 1, 1986, the Texas Rules of Criminal Evidence govern the admissibility of hearsay. Lucas v. State, 721 S.W.2d 315, 318 n. 3 (Tex.Crim.App.1986). Rule 803(6) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

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(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in • any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. “Business” as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

Kucinski’s testimony clearly supports the admission of the records underlying State’s Exhibit 1. I would, therefore, overrule Dixon’s second point of error.

Sufficiency of the Evidence

In his third point of error, Dixon complains that the evidence is legally insufficient to support his conviction because State’s Exhibit 1 was inadmissible to prove value, an essential element of the offense. I disagree and would therefore overrule this point of error.

I admit to being completely mystified by the majority’s discussion of footnote five in Arriaga v. State, 804 S.W.2d 271, 277 n. 5 (Tex.App.—San Antonio 1991, pet. ref'd). The law is clear: “In assessing the sufficiency of the evidence to support a conviction, a reviewing court must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider. In the event a portion of this evidence was erroneously admitted, the accused may *198complain on appeal of such error. If his complaint has merit and the error is reversible, ..., a new trial should be ordered.” Id. (emphasis added) (quoting Thomas v. State, 753 S.W.2d 688, 695 (Tex.Crim.App.1988) and citing Villalon v. State, 791 S.W.2d 130 (Tex.Crim.App.1990)).

Under the proper scope of review set forth in Thomas, and the well-settled standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979), the evidence is plainly sufficient to support Dixon’s conviction if State’s Exhibit 1 is considered. In my view, however, State’s Exhibit 1 is not critical to a legal sufficiency analysis for two independent reasons. First, the jury had before it ample unobjected-to testimony regarding value. Second, the jury could, in any event, have reasonably inferred from the evidence of the monitor and keyboard values that a CPU and printer would be worth at least $310. I would, therefore, overrule Dixon’s third point of error.

Comment on Dixon’s Failure to Testify

In his first point of error, Dixon complains that the trial court erred in denying his motion for a mistrial after the prosecutor made the following closing argument:

Prosecutor: Basically we have proven all of the elements in the ease beyond a reasonable doubt in this case, and we are going to ask that you find the defendant guilty of theft. When the criminal defense lawyer gets up, ask him though to explain to you why the defendant was seen wheeling a large box out on the very night that the items were stolen and ask him to explain to you why it was that the defendant showed up at a pawn shop—

I disagree with Dixon’s assertion that this argument required a mistrial.

The privilege against self-incrimination, extended by the Fifth Amendment to the United States Constitution, as well as article I, section 10 of the Texas Constitution, prohibits comments by counsel of his exercise of the privilege. Tex.Code CRiM. PROC. Ann. art. 38.08 (Vernon 1979). The standard for evaluating whether such a comment violates an accused’s constitutional and statutory rights is whether, “viewed from the standpoint of the jury,” the argument is “ ‘manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the accused’s failure to testify.’ ... A mere indirect or implied illusion to the accused’s failure to testify does not violate appellant’s rights. A remark that calls attention to the absence of evidence which only the defendant could supply will result in reversal; however, if the language can reasonably be construed to refer to appellant’s failure to produce evidence other than his own testimony, the comment is not improper.” Patrick v. State, 906 S.W.2d 481, 490-91 (Tex.Crim.App.1995), cert. denied, - U.S. -, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996) (quoting Banks v. State, 643 S.W.2d 129, 134-35 (Tex.Crim.App.1982), cert. denied, 464 U.S. 904, 104 S.Ct. 259, 78 L.Ed.2d 244 (1983)).

In my view, the prosecutor’s argument could reasonably be viewed, from the standpoint of the jury, as a comment not on Dixon’s failure to testify, but on his failure to produce evidence from other sources, such as his companion at the pawn shop. I would, therefore, overrule Dixon’s first point of error and affirm the judgment.