Dixon v. State

940 S.W.2d 192, 1996 Tex. App. LEXIS 5816, 1996 WL 743485
Court of Appeals of Texas·Decided December 31, 1996·No. 04-95-00113-CR·Published·Cited by 15 cases

Opinions

OPINION

HARDBERGER, Justice.

Doris Marie Dixon (“Dixon”) was convicted by a jury of theft $750 to $20,000 and punishment was assessed at five years confinement. We reverse and remand.

Facts

Dixon worked as a security guard at the Psychological Corporation in San Antonio, Texas during August 1993. The information systems department of the corporation contained various types of office equipment: personal computers, computer tape drive equipment, disk drive equipment, scanning equipment, and high speed printers. The corporation maintained twenty-four hour security for the building.

On the night of August 10, 1993, a fellow guard saw Dixon pulling an office chair on rollers into the parking lot with a big, brown box on top. Two days later, Dixon and an unknown male companion attempted to pawn some computer equipment at the Cash America pawn shop. The manager of the pawn shop became suspicious when Dixon called the computer monitor a “T.V.” and the keyboard a “typewriter.” The manager wrote down the serial numbers of the equipment— a CPU, monitor, printer, and keyboard — and called the police to see if the equipment had been stolen. While the manager was calling the police, Dixon and her male companion left at a rapid pace, taking the CPU and the printer with them. The monitor and the keyboard were left behind at the pawn shop and were returned to the Psychological Corporation. Dixon was later terminated as a security guard and prosecuted for theft of the computer equipment.

In three points of error, Dixon contends that the trial court erred in (1) refusing to grant a mistrial after the prosecution indirectly commented during closing argument on Dixon’s failure to testify; (2) admitting an otherwise inadmissible document as a summary in violation of Texas Rule of Criminal Evidence 1006 as it was not a summary, nor admissible under Texas Rule of Criminal Evidence 803(6); and (3) holding the evidence to be sufficient to sustain Dixon’s conviction because the evidence was insufficient to prove value as alleged in the indictment. Because Dixon’s third point of error contests the sufficiency of the evidence, we will consider it first. Additionally, as points of error two and three are related, we will address them together. As we sustain Dixon’s second point of error, we do not reach the merits of her first point of error.

Discussion

Dixon contends in her third point of error that the evidence at trial was insuffi[194]*194cient to sustain her conviction because it failed to prove theft of property valued at over $750 as charged in the indictment. In examining the sufficiency of the evidence, we review the entire record in the light most favorable to the verdict and determine whether any rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Little v. State, 758 S.W.2d 551, 562 (Tex.Crim.App.) (quoting Alexander v. State, 740 S.W.2d 749, 757-58 (Tex.Crim.App.1987)), cert. denied, 488 U.S. 934, 109 S.Ct. 328, 102 L.Ed.2d 346 (1988). It is for the jury, as the trier of fact, to assess the credibility of witnesses and the weight to be given their testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991).

Dixon was indicted and convicted of theft of property valued at $750 to $20,000. It is axiomatic that the state must prove that what Dixon stole was in that range. The key witness called by the State to establish this was Ben Kucinski, director of information services for The Psychological Corporation. Kucinski testified that he recovered from the pawn shop a computer monitor and keyboard that Dixon had tried to pawn. He testified that he was able to confirm by serial numbers that these were the property of the Psychological Corporation. He said the value of these two pieces of equipment was about $440. This clearly was proof of this amount of theft. Equally clear was that this proof fell short of the required $750. It is the State’s attempt to bridge this difference that comes under scrutiny in this appeal.

Kucinski was asked over Dixon’s objection the following question:

Q. What was the value of the other equipment that you did not recover?
A. It was in the vicinity of between $7,000 and $8,000.

Kucinski also testified that the last audit of the equipment before the theft had been within twelve months. This established that sometime during the past year some equipment had disappeared. At this point, the missing equipment was not identified, nor was it connected to Dixon. At most, it raised an inference that if Dixon was capable of stealing something, maybe she stole it all.

The State then introduced, again over Dixon’s objection, a list of the items that were now missing that were there a year ago. This document was State Exhibit No. 1. Prior to the admission of State Exhibit No. 1, the following exchange took place between Dixon’s defense counsel and the Court:

Defense Attorney: Your Honor, I would object as to hearsay, and it does not fall under the exception since it is not a regular activity to produce these statements, and it is hearsay information.
The Court: Let me see the document. Well, I am going to admit it as a summary. State’s Exhibit No. 1 is admitted as a business document that he referred to.

Translating this exchange from the common language of the court environment into the rules of criminal evidence we find the following:

Defense Attorney: I’m objecting to this document because it violates Rule 802 of the Rules of Criminal Evidence (the hearsay rule) and does not meet the exception of Rule 803(6) (the business records exception to the hearsay rule).
The Court: And I’m overruling your objection and admitting the document because it is a summary under Rule 1006 of the Rules of Criminal Evidence and does meet the requirements of Rule 803(6) of the Rules of Criminal Evidence and is, therefore, an exception to the general prohibition against hearsay.

The above technical dialogue did not happen, but we feel it is a fair application of the rules to what was actually said and meant.

Conceptually, Rule 1006 is considerably removed from Rules 802 and 803 and is subservient to them and other rules of admissibility. This is so because whether it is a summary or not, it still must be admissible. The character of hearsay, inadmissible or admissible, is not changed because it is a • summary. Rule 1006 provides:

The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be ex[195]*195amined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

Tex.R.CRIm. Evid. 1006 (emphasis added).

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Dixon v. State, 940 S.W.2d 192, 1996 Tex. App. LEXIS 5816, 1996 WL 743485 (Tex. Ct. App. 1996).

940 S.W.2d 192 (Dixon v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Dixon v. State
940 S.W.2d 192 (Court of Appeals of Texas, 1996)