Silva v. State

635 S.W.2d 775
CourtCourt of Appeals of Texas
DecidedSeptember 15, 1982
Docket13-81-044-CR. (2031cr)
StatusPublished
Cited by40 cases

This text of 635 S.W.2d 775 (Silva v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Silva v. State, 635 S.W.2d 775 (Tex. Ct. App. 1982).

Opinion

OPINION

YOUNG, Justice.

Under four counts of an indictment, a jury found Amador Silva, Jr., guilty of theft of personal property over the value of $200.00. The trial court then assessed defendant’s punishment at seven years confinement in the Texas Department of Corrections. The property consisted of money taken from the Edinburg General Hospital during the time Mr. Silva served as administrator there. We affirm.

During Mr. Silva’s employment with Ed-inburg General Hospital, he instituted a policy that all incoming mail would go first to his office. Included in this mail were checks from insurance companies as payment for services performed for insured patients. Thus, the jury was entitled to believe that only he had access or knowledge of these checks.

In December of 1977, employees of the hospital business office began to discover that insurance checks were deposited without giving credit to the affected customers. Discrepancies in the hospital’s cash deposits for the days the checks were received were also found. When the business officer manager explained this situation to Mr. Silva, he avoided taking corrective action. She finally decided to inform the Chairman of the Board of the problem. Mr. Hinojosa, Chairman of the Board of the Edinburg General Hospital, did not authorize Mr. Silva to take the money, nor did he know of any member of the board giving such authorization.

An investigation revealed that Mr. Silva and his wife had an account with the First National Bank of Edinburg. Comparisons of handwriting from Mrs. Silva’s signature card and her personal checks with the writing on the hospital’s deposit slips tended to indicate that these were all written by the same person. Thus, the State brought forth evidence to show that Mr. Silva withdrew cash from the hospital’s daily cash receipts, substituted the cash with insurance checks and arranged for his wife to alter the deposit slips. This scheme enabled *777 his activities to go undetected until patients began discovering that their accounts had not been credited for payments made by their insurance companies. The State examined all hospital employees with access to the cash or checks and excluded their participation in the scheme.

Several of the appellant’s grounds of error challenge the admissibility of the evidence, which consisted primarily of cheeks and deposit slips. He complains that copies of the bank microfilms of the checks from the insurance companies to the hospital were improperly admitted because they were hearsay and failed to satisfy the best evidence rule. Such copies are admissible if there is a reasonable account for their absence or if there is no question of their authenticity. Tex.Rev.Civ.Stat.Ann. art. 3731c (Vernon Supp.1982). This rule is applicable in criminal cases. Tex.Code Crim. Proc.Ann. art. 38.02 (Vernon 1979). There was no bona fide dispute that these copies were not accurate reproductions of the original. Therefore, the best evidence rule does not render them inadmissible.

Appellant also contends that these checks should not have been introduced because they were hearsay. He claims that the proper predicate was not laid for their admission as business records. The appellant is incorrect in his characterization of the checks as hearsay. Hearsay is an extrajudicial statement offered to prove the truth of the matter asserted. Salas v. State, 403 S.W.2d 440, 441 (Tex.Cr.App.1966). The purpose of introducing these checks into evidence was to show that they had been deposited in the hospital’s account with the bank, not to attest to the truth of any statement made on the checks. Thus, they were not hearsay. Compton v. State, 607 S.W.2d 246, 252 (Tex.Cr.App.1980).

Appellant’s second ground of error asserts that the bank signature card containing Mrs. Silva’s signature was also inadmissible hearsay. Again, because the purpose of its introduction was simply to make possible a handwriting comparison, this card was not being offered to prove any statement contained therein and was not hearsay. See Wilson v. State, 605 S.W.2d 284, 287 (Tex.Cr.App.1980).

The hearsay and best evidence rules are again the basis for ground of error three, which deals with copies from bank microfilms of personal checks made out by Mrs. Silva. The best evidence argument fails because there was no question of the authenticity of these checks and there was testimony that the originals were not readily accessible. Because these checks were offered for a handwriting comparison only and not for the truth of any statement, they were not hearsay. Compton v. State, supra.

In ground five, appellant claims that the deposit slips themselves were inadmissible hearsay and, therefore, the evidence was insufficient to support the verdict. The deposit slips were the instrumentality of the crime. There was testimony that no one authorized to make out deposit slips produced these; rather that the handwriting was attributable to Mrs. Silva. Just as a check in the Compton case was used to carry out the theft, so were the deposit slips in this case the means whereby Mr. Silva executed his scheme. They were offered to show that Mr. Silva was tampering with the deposits. Therefore, they were not hearsay. We have found that all the evidence challenged by the appellant was admissible and that there is sufficient evidence to sustain the conviction. Ground of error five is overruled.

The eighth ground of error maintains that the State failed to prove its case beyond a reasonable doubt. The arguments reiterate those in ground five which challenge the sufficiency of the evidence. Ground eight is overruled.

In his fourth ground of error, appellant asserts that he was denied a fair trial because the trial judge made some remarks outside of the presence of the jury which assisted the State in the trial of the case. Appellant’s argument is not that the judge made harmful comments on the weight of the evidence before the jury but that the trial judge aided the prosecution by sug *778 gesting the phrasing of questions and by suggesting that additional witnesses be called to meet the State’s burden of proof.

One of the instances of partiality which appellant brings to our attention is a suggestion by the judge to the prosecutor to put on witnesses to remove every other reasonable hypothesis from the case. Appellant argues that this remark caused the district attorney to realize that he needed to call more witnesses and that after this the State did call nine additional witnesses that had not been previously announced nor subpoenaed. It is clear from the record that had the State rested prior to calling these additional witnesses it is questionable whether appellant’s conviction could stand. The State argues that appellant has not shown any harm and that appellant has not shown that the witnesses would not have been called but for the court’s suggestion. Furthermore, the State tries to justify the remarks by the judge on the basis that the judge has wide discretion in managing the trial, including the order of the proof.

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Bluebook (online)
635 S.W.2d 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silva-v-state-texapp-1982.