Derrick Dewayne Henderson v. State

• Court: Court of Appeals of Texas
• Decided: February 3, 2009
• Docket: 14-07-00756-CR
• Status: Published

Opinion

Affirmed and Memorandum Majority and Concurring Opinions filed February 3, 2009

Affirmed and Memorandum Majority and Concurring Opinions filed February 3, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00756-CR

DERRICK DEWAYNE HENDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1128676

M E M O R A N D U M   C O N C U R R I N G   O P I N I O N

It is proper to affirm the trial court=s judgment.  However, in its opinion, the majority  incorrectly characterizes appellant Derrick Dewayne Henderson=s arguments under his second issue regarding the phone records.  The arguments asserted at trial and on appeal in this regard lack merit.

                 Appellant=s Trial Objections to the Phone Record Exhibits

The State offered certain phone records into evidence as State=s Exhibit 68.  The trial court admitted this exhibit into evidence over the following objection by appellant:

Your Honor, we=re going to object to these records.  Records were provided to me similar to these under a business records affidavit; and what they were comprised of was a copy of the records, which Detective Villareal received, as he has just testified.  Then we relied on those records because they were filed under a business records affidavit.  The business records affidavit was received from Sprint, or was sent to Sprint Corporation to verify those records.  And you can tell this C you can see the records in the Court=s file, the records that were filed by the prosecutor=s office.  Then the business records affidavit was faxed back to the District Attorney=s Office and put with these records as if these records were sent to the D.A.=s Office under a business records affidavit.

Now this is what I relied on.  I have no idea what they=ve got there; but at any rate, the affidavit, which purported to be sent with those records, were not, in fact, sent with those records, but sent by itself and put with those records as if they are sent under business records affidavit.  So, in other words, the custodian of records for Sprint Corporation apparently sent the business records affidavit under false pretenses if they had sent those records, and those records do not have the same fax header on them that the business records affidavit has.  So, we=re going to object to these records being used in the trial.^[1]

The State also offered certain phone records into evidence as State=s Exhibit 69.  The trial court admitted this exhibit into evidence over the following objection by appellant:

Your Honor, we=re going to object to these records, because they are hearsay.  They did not come into this court with a business records affidavit.  This is the  business records affidavit with to and from fax headers.  These records don=t have these same fax records [sic] on them, so they do not belong together.  This is just hearsay with a loose business records affidavit, so we object.

State=s Exhibit 68 is a business-records affidavit executed on July 26, 2007, that proves the attached records are business records of Sprint Nextel.  Attached to the affidavit is a cover letter to an investigating police officer dated May 5, 2006, that contains phone records.  State=s Exhibit 69 is a business-records affidavit executed on July 24, 2007, that proves the attached records are business records of Sprint Nextel.  Attached to the affidavit is a cover letter to an investigating police officer dated June 5, 2006, that contains phone records.

The objections appellant voiced in the trial court as to these two exhibits can be summarized as follows: (1) though the State filed business-records affidavits and served them on appellant=s counsel, the documents attached to these affidavits are not the same as the documents contained in the affidavits in the two trial exhibits, as shown by the alleged fact that the records in the exhibits do not have the same Afax headers@ as the records in the respective business-records affidavits that the State filed and served; and (2) in the alternative, the documents attached to the affidavits in the two trial exhibits were not attached to the respective affidavits in the trial exhibits when the respective affiants signed them.  To the extent appellant asserts complaints on appeal that go beyond these objections, appellant did not preserve error in the trial court.^[2]

On appeal, appellant does not present argument regarding the former objection; however, he does argue that, because the affidavits in the two trial exhibits were signed more than a year after the respective attached cover letters, it is apparent that no documents were attached to these two affidavits when they were signed.  However, this contention does not logically follow.  If, as stated in the two affidavits, the attached letter and enclosures are business records of Sprint Nextel, there is no reason that affidavits proving up the status of these documents as business records could not be signed more than a year after the letters were sent.  Our record does not contain any evidence showing that the documents attached to the affidavits in the two exhibits were not attached to the respective affidavits when they were signed.  Therefore, the trial court did not abuse its discretion in overruling the latter objection.

Even if appellant had presented appellate argument regarding the former objection, it would lack merit.  First, our record does not contain copies of the business-records affidavits from the trial court=s file that were served on appellant, which appellant stated in the trial court were different from the two affidavits in the exhibits.  Second, the affidavits in the exhibits are copies of affidavits that were file-stamped, showing that they had been filed in the trial court.  Because our clerk=s record does not contain copies of any business-records affidavits filed by the State in the trial court below, appellant has not presented this court with a record showing the trial court=s alleged error, that is, appellant has not presented this court with a record showing filed affidavits that differ from the two affidavits contained in the trial exhibits.^[3]  In addition, the affidavits may have been faxed before they were signed by the affiants.  Therefore, even if the affidavits themselves contain fax headers different from the attached documents, that difference does not necessarily mean that the documents were not attached to the affidavits when they were signed.

For the above reasons, appellant=s appellate arguments regarding State=s Exhibits 68 and 69 lack merit.

                                            The Majority=s Analysis

The majority addresses procedural requirements of Texas Rule of Evidence 902(10)(a) of which appellant has not complained.^[4]  The majority asserts that appellant=s argument is that the business-records affidavit must be signed on the same day as an attached cover letter containing the business records.  Appellant has not made this argument.  Instead, appellant asserts that because the affidavits in the two trial exhibits were signed more than a year after the respective attached cover letters, no documents were attached to these two affidavits when they were signed.  The majority also states that it finds nothing that indicates that the telephone records lack authenticity or trustworthiness.  However, to the extent appellant asserts in general that these records lack authenticity or trustworthiness, appellant did not voice this complaint in the trial court.  The two objections that appellant did raise in the trial court were specific complaints regarding an alleged failure to follow the procedural requirements of Texas Rule of Evidence 902(10)(a), rather than attacks on the authenticity or trustworthiness of the telephone records.  The majority=s analysis does not address appellant=s complaints in the trial court and on appeal regarding the admission into evidence of the telephone records.  For this reason, I respectfully concur in the judgment but do not join the majority=s opinion.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Anderson and Frost and Senior Justice Hudson.* (Anderson, J., majority).

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The day after this exhibit was admitted, appellant=s trial counsel mentioned additional objections that he had not voiced previously.  The trial court pointed out that these objections were untimely because the exhibit already had been admitted.  Because the objections on the second day could have been made before the exhibit was admitted into evidence, the trial court was correct that these objections were untimely.  See Ethington v. State, 819 S.W.2d 854, 858B59 (Tex. Crim. App. 1991); Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).  The trial court did not prevent appellant from making a record regarding his objections to the phone records, and appellant did not object that the trial court prevented him from making a record regarding these objections.

^[2]  See Ethington, 819 S.W.2d at 858B59; Jasso, 112 S.W.3d at 813. 

^[3]  See Word v. State, 206 S.W.3d 646, 651 (Tex. Crim. App. 2006) (stating that, even with the repeal of former Rule of Appellate Procedure 50(d), the general procedural default rule continues to be that the appealing party has the burden to present a record showing properly preserved, reversible error and that appellate courts will not presume error from a silent record). 

^[4]  See ante at p. 12.  In addition, our record does not reflect that the State gave appellant prompt notice of the filing of the affidavits contained in these two exhibits. This failure is not a problem because  appellant has not complained of any alleged failure to give prompt notice.