John Brandon Burks v. State

Opinion

ACCEPTED 05-14-01369-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 5/29/2015 10:21:57 AM No. 05-14-01369-CR LISA MATZ CLERK

5th Court of Appeals FILED: 06/01/2015 Lisa Matz, Clerk 12:35:47 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS RECEIVED IN 5th COURT OF APPEALS DALLAS, TEXAS 5/29/2015 10:21:57 AM JOHN BRANDON BURKS, LISA MATZ Clerk Appellant

vs.

THE STATE OF TEXAS, Appellee

On appeal from Criminal District Court Number 5 of Dallas County, Texas In Cause No. F13-21294-L

APPELLANT’S BRIEF

Counsel of Record: Lynn Richardson Nanette Hendrickson Chief Public Defender Assistant Public Defender Dallas County, Texas State Bar No. 24081423 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Katherine A. Drew Dallas, Texas 75207-4399 Chief, Appellate Division (214) 653-3582 (phone) Dallas County Public Defender’s Office (214) 653-3539 (fax) Nanette.Hendrickson@ dallascounty.org Attorneys for Appellant LIST OF PARTIES

APPELLANT John Brandon Burks

DEFENSE COUNSEL AT TRIAL Kobby T. Warren 777 Main St., Ste. 600 Fort Worth, TX 76102

STATE’S ATTORNEY AT TRIAL Herschel Woods Dallas County District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399

APPELLANT’S ATTORNEY ON APPEAL Nanette Hendrickson Dallas County Public Defender’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, Texas 75207-4399

STATE’S ATTORNEY ON APPEAL Susan Hawk (or her designated representative) Dallas County District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399

1 TABLE OF CONTENTS

LIST OF PARTIES ................................................................................................... 1 TABLE OF CONTENTS .......................................................................................... 2 INDEX OF AUTHORITIES..................................................................................... 3 STATEMENT OF THE CASE ................................................................................. 4 ISSUES PRESENTED.............................................................................................. 4 STATEMENT OF FACTS ....................................................................................... 4 SUMMARY OF ARGUMENT ................................................................................ 6 ARGUMENT ............................................................................................................ 6 Point of Error, Restated............................................................................................. 6 The trial court erred by admitting State’s Exhibit 20 because it was not properly authenticated...............................................................................6 PRAYER ................................................................................................................. 10 CERTIFICATE OF SERVICE ............................................................................... 10 CERTIFICATE OF COMPLIANCE ...................................................................... 11

2 INDEX OF AUTHORITIES

Cases Blankenbeker v. Texas Dep’t of Pub.Safety, 990S.W.2d813(Tex. App.—Austin 1999, pet. ref’d)........................................8, 9 Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) ...............................................................7 Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) ..............................................................8 Rules TEX. R. EVID. 901(a) ..................................................................................................7 TEX. R. EVID. 901(b)(1) .............................................................................................8 TEX. R. EVID. 902 .......................................................................................................8 TEX. R. EVID. 902(4) ....................................................................................... 8, 9, 10

3 TO THE HONORABLE COURT OF APPEALS:

COMES NOW Appellant, John Brandon Burks, and submits this brief on

appeal from a conviction in Criminal District Court Number 5 of Dallas County,

Texas, the Honorable Carter Thompson, judge presiding.

STATEMENT OF THE CASE

Appellant was charged with failure to stop and render aid in Criminal

District Court Number 5 in Dallas County, Texas. (CR: 12). Appellant pled guilty

to the primary charge in the indictment. (RR1: 7). Following a punishment hearing,

the trial court sentenced Appellant to 8 years’ incarceration. (CR: 53; RR1: 111).

Judgment was entered by the trial court on October 17, 2014. (CR: 53). A notice of

appeal was timely filed. (CR: 61).

ISSUES PRESENTED

Point of Error

The trial court erred by admitting State’s Exhibit 20 because it was not properly authenticated.

STATEMENT OF FACTS

On December 28, 2010, Jaime Stanley was driving to her home in

Duncanville from her sister’s house. (RR1: 53). Jaime was 34 weeks and six days

pregnant at that time. (RR1: 53-54). While driving down Main Street in

Ducanville, she saw a vehicle’s headlights ahead of her coming directly towards

her car. (RR1: 54-55). She honked her horn, but the vehicle, later determined to be 4 a truck, was still coming at her. (RR1: 55). Jaime only had enough time to honk

and brace herself on the steering wheel before the truck crashed into her. (RR1:

55). Jaime was able to slightly turn the wheel before the crash, but the truck did not

appear to take any evasive action. (RR1: 55). Jaime never saw the driver of the

pickup. (RR1: 58). The pickup was empty when the police arrived on the scene of

the accident. (RR1: 58).

Jaime was taken to the hospital where it was determined both of her arms

were broken. (RR1: 59). Initially, the baby’s heartbeat was present, but his vitals

became abnormal soon after arrival at the hospital. (RR1: 59). After an emergency

C-section, the baby was taken to the NICU unit and treated for respiratory

problems. (RR1: 60). The baby was then in ICU for 17 days due to complications

with eating and respiration. (RR1: 60). After leaving the hospital, the baby

experienced developmental delays necessitating speech, physical, and occupational

therapy. (RR1: 61). However, in time, the baby regained his health. (RR1: 61).

Jaime had physical therapy on her wrists and left leg. (RR1: 60).

In 2012, Appellant admitted to driving the vehicle and his insurance settled a

civil claim against him. (RR1: 63). Appellant was charged with a crime years

later. (RR1: 63).

5 SUMMARY OF ARGUMENT

The trial court erred by admitting State’s Exhibit 20 because it was

improperly authenticated. The exhibit was not sponsored by a witness with

personal knowledge of the contents nor was it properly certified as a self-

authenticating document pursuant to the Texas Rules of Evidence. Therefore, the

trial court abused its discretion.

ARGUMENT

Point of Error, Restated

The trial court erred by admitting State’s Exhibit 20 because it was not properly authenticated. Facts

The State introduced State’s Exhibit 20 through Lori Fuller, a “technical

supervisor with the Southwestern Institute of Forensic Sciences...” (RR1: 35).

Fuller maintained “the integrity of the Texas Breath Alcohol Program” in Area 23

which included Dallas, Collin, and Denton Counties. (RR1: 35). Fuller’s also

duties included training police departments on how to use the Intoxilyzer 5000.

(RR1: 35). During Fuller’s testimony, the State introduced an exhibit purporting to

be Appellant’s Intoxilyzer test-results on January 20, 2011. (RR1: 36). Fuller

testified that State’s Exhibit 20 was an accurate copy of the test-result from

Appellant’s breath test. (RR1: 36). However, on cross examination, Fuller testified

that she did not actually administer the test to Appellant. (RR1: 37-38). Instead, the

6 actual operator of the machine was Officer Johnson, an officer with Dallas Police

Department. (RR1: 38). Appellant objected to the admission of State’s Exhibit 20

based on an improper predicate. (RR1: 38). The State’s responded that the exhibit

was a business record kept in the normal course of business. (RR1: 38). The trial

court overruled the objection. (RR1: 39).

State’s Exhibit 20 is signed only by the operator, Officer Johnson of the

Dallas Police Department. (RR1: 38; State’s Exhibit 20). There are no marks

certifying the exhibit as being filed or kept with the Department of Transportation

or any other public office. (State’s Exhibit 20).

Standard of Review

The admission of evidence is reviewed under an abuse of discretion

standard. Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). The

reviewing court will affirm the trial judge’s ruling if it is within the “zone of

reasonable disagreement.” Id.

Law

Authentication of an item requires that the evidence show the item is what it

purports to be. TEX. R. EVID. 901(a). There are several ways in which to

authenticate a piece of physical evidence: “…by direct testimony from a witness

with personal knowledge, by comparison with other authenticated evidence, or by

7 circumstantial evidence.” Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App.

2012) (citing TEX. R. EVID. 901(b)(1)).

A document may also be self-authenticating if it meets the requirements of

Rule 902. TEX. R. EVID. 902. In Blankenbeker v. Texas Dep’t of Pub. Safety, the

defendant challenged the admission of the test-results printout from the intoxilyzer

for lack of authentification. Blankenbeker v. Texas Dep’t of Pub. Safety, 990

S.W.2d 813, 816 (Tex. App.—Austin 1999, pet. ref’d). An official from the

Department of Transportation testified the document was from their files, and the

document itself was “stamped with the DPS seal and signed with an attestation that

the printout [was] contained in DPS files.” Id.

The defendant argued that since the police department created the form and

administered the test, that police officer should authenticate the test-result. Id.

However, the Court reasoned that “Rule of Evidence 902(4) provides that extrinsic

evidence of authenticity as a condition precedent to admissibility is not required

with respect to . . . [a] copy of an official record or report or entry therein, or of a

document authorized by law to be recorded or filed and actually recorded or filed

in a public office . . . by certificate complying with paragraph (1) . . . of this rule.”

Id.,citing TEX. R. EVID. 902(4) (emphasis added). Therefore, in order to be self-

authenticating, the intoxilyzer test-result must be certified as being from a public

8 entity, i.e., the Department of Transportation or sponsored by an officer from a

public entity testifying to the same information. Id.

Application of the Law to the Facts

State’s Exhibit 20 was the test-result from the Intoxilyzer 5000 used to

administer Appellant a breath test after the accident. The State introduced State’s

Exhibit 20 through Lori Fuller who maintained the Intoxilyzer 5000 and trained

police departments to use the machine. The State attempted to show the test-result

was self-authenticating through Fuller’s testimony that she maintained custody of

at least one copy of every document created by the Intoxilyzer 5000 in her area.

(RR1: 35-36). However, the record does not establish the document was filed with

a public entity or office in the regular course of business as required by Rule

902(4). (RR1: 35); TEX. R. EVID. 902(4).

Fuller testified she was an employee of the Southwestern Institute of

Forensic Sciences(SWIFS), a crime lab in Dallas, Texas. (RR1: 35). There is

nothing in the record showing that SWIFS is a public entity, such as the

Department of Transportation, or that Fuller was an officer of any public entity.

Furthermore, State’s Exhibit 20 has no markings on it certifying it was filed or kept

in the regular course of business with any public entity. Rather, the only signature

on the test-result belonged to Officer Johnson of the Dallas Police Department who

administered the test to Appellant. (RR1: 38; State’s Exhibit 20). Officer Johnson

9 testified, but the State did not offer the test-result through his testimony. Since

State’s Exhibit 20 was not admitted through Officer Johnson, who had personal

knowledge of the test-result, nor was the document self-authenticating, the proper

predicate was not met pursuant to Rule 902(4) for its admission. TEX. R. EVID.

902(4). The trial court abused its discretion meriting a new punishment hearing.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

vacate the judgment and grant Appellant a new punishment hearing. Appellant

further prays for any relief to which he may be entitled.

Respectfully submitted,

/s/ Nanette Hendrickson Lynn Richardson Nanette Hendrickson Chief Public Defender Assistant Public Defender Dallas County, Texas State Bar No. 24081423 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Katherine A. Drew Dallas, Texas 75207-4399 Chief, Appellate Division (214) 653-3582 (phone) Dallas County Public Defender’s Office (214) 653-3539 (fax)

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing brief was served on the Dallas County Criminal District Attorney’s Office (Appellate Division), 133 N. Riverfront Blvd., 10th Floor, Dallas, TX 75207 by hand delivery on May 29, 2015. /s/ Nanette Hendrickson Nanette Hendrickson

10 CERTIFICATE OF COMPLIANCE

I certify that the foregoing brief contains 1,834 words.

/s/ Nanette Hendrickson Nanette Hendrickson