Christopher Neal McGonigal v. State

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-14-00164-CR

CHRISTOPHER NEAL MCGONIGAL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court Red River County, Texas Trial Court No. CR01907

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION In its motion to have the guilt of Christopher Neal McGonigal adjudicated and his

community supervision revoked, the State alleged only that McGonigal had violated a single

condition of his community supervision, committing a crime in Kansas. The alleged Kansas

offense was driving under the influence of alcohol or drugs. 1 The State’s thin documentary

evidence demonstrated only that, in Kansas, McGonigal was arrested and that he was informed of

his rights relative to entering a plea to the charge against him. On the other hand, the oral

testimony, also quite limited, provided legally sufficient evidence that he had committed the

Kansas offense. We, therefore, affirm the trial court’s judgment.

In the hearing on the State’s motion to adjudicate McGonigal’s guilt, the State introduced

two pieces of documentary evidence relative to the Kansas offense, one, a booking document

showing that McGonigal was arrested, and the other, a plea admonishment document showing that

he was informed of his rights regarding entry of a plea. The only other hearing exhibit—a copy

of a notice of appeal filed in Kansas on June 10, 2014, on McGonigal’s behalf—was introduced

by McGonigal. Beyond those documents, however, two bits of key oral testimony were admitted,

without objection. Red River County Community Supervision Officer Miranda Dean testified that

the Kansas offense “occurred on or about May 9, 2014.” Alex Davidson, an investigator with the

1 The State’s motion to adjudicate alleged that McGonigal had violated the first term of his community supervision by “commit[ting] [an] offense against the laws of this or any State of the United States. . . .” The State alleged that he violated the term when he “committed the offense of Driving under Influence of Alcohol or Drugs on or about May 9, 2014 in Montgomery County, KS.”

2 office of the prosecutor for Red River County, testified that McGonigal pled guilty to the Kansas

offense, acknowledging that he had committed it.

We review the adjudication of guilt on the original charge of an appellant under deferred

adjudication in the same way as a revocation of community supervision. TEX. CODE CRIM. PROC.

ANN. art 42.12, § 5(b) (West Supp. 2014); Thomas v. State, 379 S.W.3d 436, 442 (Tex. App.—

Amarillo 2012, no pet.); see Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008,

pet. ref’d). We therefore review a trial court’s decision to adjudicate guilt for abuse of discretion.

See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The burden of proof requires

the State to show by a preponderance of the evidence that the defendant violated a term of

community supervision as alleged in the motion to proceed to adjudication. See Cobb v. State,

851 S.W.2d 871, 873 (Tex. Crim. App. 1993).

The trial court is the sole judge of the credibility of the witnesses and the weight to be given

their testimony, and we review the evidence in the light most favorable to the trial court’s ruling.

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Garrett v. State, 619 S.W.2d 172,

174 (Tex. Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of proof, the trial

court abuses its discretion in proceeding to adjudication. See Cardona, 665 S.W.2d at 493–94;

Lawrence v. State, 420 S.W.3d 329, 331 (Tex. App.—Fort Worth 2014, pet. ref’d).

Often, cases involving convictions from other states involve the use of penitentiary packets

(pen packs) to show that the law of another state was broken, since bringing in witnesses from

another state to independently prove up the criminal conduct would be somewhat prohibitive in

cost and time. No pen pack or anything similar was presented here. In this case, there is no direct,

3 first-hand witness to any criminal conduct by McGonigal in Kansas, there is no judgment of

conviction, and there is no order remanding him to prison. There is also no opinion disposing of

an appeal. Of course, there is no requirement here that there be proof of a conviction; the allegation

is committing a new offense, not being convicted of one. See Armstrong v. State, 472 S.W.2d 150

(Tex. Crim. App. 1971).

First, we examine the two documents the State claims show that McGonigal was guilty of

committing an offense. State’s Exhibit 1 is a document titled “Acknowledgment of Rights and

Entry of Plea” in a case involving Christopher McGonigal, cause number 14 TR 27 I. It is certified

by the Clerk of the District Court of Montgomery County, Kansas. It indicates that plea

negotiations have been conducted as shown by a referenced plea agreement—said to be attached

but which is neither attached nor part of this record. The document states that McGonigal would

be pleading to a charge of “DUI 1st” and then provides a litany of rights being waived if he pleads

guilty or nolo contendre. The document may fairly be said to warn McGonigal of what will occur

if he pleads guilty or nolo contendre, including the rights he will lose, and it also attempts to obtain

information from which the trial court can determine if his decision to plead was made voluntarily

and without coercion.

The second document entered by the State was a faxed, uncertified, unverified document

purporting to be an inmate booking sheet for Christopher McGonigal. It contains a photograph,

personal identification information, and specifies that McGonigal was facing two charges: driving

under the influence and driving left of the center line. It identifies the warrant number as 14TR27.

There is no case number provided. Though one might speculate that the Kansas warrant number

4 is also the trial court number, it would be no more than speculation. We also note that the number

does not fully match the number appearing on the State’s first exhibit.

A third exhibit was entered by the defense. It is a notice of appeal filed in the Kansas Court

of Appeals from a sentence entered in cause number 14 TR-27 I. The notice of appeal does not

bear the same cause number as the documents introduced by the State. It is close, but not an exact

match: an “I” has been added. If we assume that it is the same case, it shows that whatever

conviction may be involved was not final because it was on appeal. Again, the violation here is

committing another offense, not being finally convicted of another crime.

In order to prove by a preponderance of the evidence that McGonigal in fact committed an

offense in Kansas, the State was obliged to submit legally sufficient evidence of that fact. We find

in this record only the oral testimony referenced above that the Kansas offense “occurred,”

resulting in McGonigal’s arrest, and that he pled guilty to the offense, acknowledging that he had

committed the offense. While this method of proof is certainly not textbook, it is legally sufficient

evidence of the commission of the Kansas offense and, thus, of the violation of a term of

McGonigal’s community supervision.

The State contends that the plea warning document demonstrates that McGonigal pled

guilty to the Kansas offense. There is a problem with that claim, if it were to rest solely on the

document itself. What is missing from the plea warning document is an actual plea. The document,

despite its title, contains no language entering a plea, or stating that the defendant would enter a

plea, or what his plea would be. This document shows that McGonigal was in negotiations with

5 the prosecutor and was warned about the results of a plea of guilty or nolo contendre. It does not

expressly show that he was convicted of any crime or that he pled guilty.

The plea document is not without some worth to the State. While circumstantial, if one

compares the plea warning document with the notice of appeal, it would suggest that McGonigal

appealed from a conviction that occurred on the date he pled to the Kansas offense. It also is worth

remembering that the plea document does not stand alone as evidence of the Kansas offense. The

documentary evidence and the oral evidence, taken together, provide some evidence of the Kansas

offense.

McGonigal objected at trial that the intake document was hearsay that was inadequately

authenticated. The issue is thus preserved for our review. See Long v. State, 590 S.W.2d 138

(Tex. Crim. App. 1979). We review the trial court’s decision to admit or exclude evidence under

an abuse-of-discretion standard, and we will not disturb the trial court’s ruling if it is within the

zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 379–80, 391 (Tex. Crim.

App. 1990) (op. on reh’g); Clay v. State, 390 S.W.3d 1, 13 (Tex. App.—Texarkana 2012, pet.

ref’d). Such documents may be authenticated with a certification by their custodian that the

contents are correct copies of the originals. TEX. R. EVID. 902(4); Reed v. State, 811 S.W.2d 582,

586 (Tex. Crim. App. 1991); accord Sharp v. State, 210 S.W.3d 835, 840 (Tex. App.—Amarillo

2006, no pet.); Cuddy v. State, 107 S.W.3d 92, 96 (Tex. App.—Texarkana 2003, no pet.) (holding

same).

The intake document is not self-authenticated. Thus, we use the more expansive review

provided by Rule 901(a) of the Texas Rules of Evidence to see if there is “sufficient evidence to

6 support a finding that the matter in question is what the proponent claims.” Smith v. State, 401

S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref’d). Under that proviso, examples are given

that suggest that a public record or report is admissible if there is “evidence that a writing

authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a

purported public record, report, statement or data compilation in any form is from the public office

where items of this nature are kept.” TEX. R. EVID. 901(b)(7).

It would appear that the booking sheet was considered a copy of a public record. The

question governing its admissibility as a public record is whether there was evidence that it was

provided by a public office. There is testimony from a Red River County officer that he contacted

a Kansas officer and asked them to fax this document to him and that he then received it. The

quantum of evidence is minimal, but we are operating here under an abuse-of-discretion standard.

It appears that the booking sheet was properly considered a public record.

McGonigal, though, argues that its hearsay nature should have kept it out of evidence.

Certain public records, however, are not to be excluded based on their hearsay character. A record

or report of a public office that sets forth “the activities of the office or agency” is among those

records not subject to the hearsay rule. TEX. R. EVID. 803(8)(A); see United States v. Haughton,

No. 06-20054, 2007 WL 2186250 (5th Cir. 2007) (not designated for publication). Again, though

the use of this document is far from textbook, it appears to be properly admitted. We cannot find

an abuse of discretion on this record.

It thus appears that both of the exhibits offered by the State were properly before the trial

court. The contention of error is overruled.

7 We affirm the judgment of the trial court.

Josh R. Morriss, III Chief Justice

Date Submitted: March 3, 2015 Date Decided: April 8, 2015

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