815 S.W.2d 592 (Tex.Crim.App. 1991), 69337, Trevino v. State

Docket Nº:69337.
Citation:815 S.W.2d 592
Party Name:Joe Mario TREVINO, Appellant, v. The STATE of Texas, Appellee.
Case Date:June 12, 1991
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas

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815 S.W.2d 592 (Tex.Crim.App. 1991)

Joe Mario TREVINO, Appellant,


The STATE of Texas, Appellee.

No. 69337.

Court of Criminal Appeals of Texas.

June 12, 1991

Rehearing Denied Sept. 18, 1991.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Art Brender, Terry M. Casey and Frank P. Colosi (Court-appointed on appeal), Fort Worth, and Charles Van Cleve (Court-appointed on appeal), Arlington, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, Mary Thornton Taylor and Rufus Adcock, Asst. Dist. Attys., Fort Worth,

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Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.


McCORMICK, Presiding Judge.

On January 17, 1983, the body of eighty-year-old Blanche Miller was found inside her ransacked home. The victim had been strangled and raped. Numerous items were stolen during the offense including a television, a stereo, a radio and the victim's car. Appellant was convicted of this capital offense and his punishment was assessed at death. This is an appeal from that conviction.

In his first point of error, appellant contends the trial judge reversibly erred during the punishment phase of trial when he refused to allow the introduction of an exhibit purporting to be a psychological assessment of appellant. The Harris County Department of Education at the request of the Harris County Probation Office had conducted a psychological assessment of appellant when he was twelve years old. Appellant's exhibit contained the written findings concerning the psychological assessment. This exhibit was accompanied by a certificate made out by the records custodian of the Texas Youth Council. Said certification averred:

"[T]he records attached hereto consists of true and correct copies of records made by an employee under the direction of a duly qualified officer for the Texas Youth Commission as a consequence of the detention of Joe Mario Trevino, Jr. (Date of Birth: July 25th, 1962).

"Further, the records hereto attached are records of the Texas Youth Commission which were created in the regular course of business, and it was the regular course of business at the Texas Youth Commission for an employee or representative with personal knowledge of the act, event or condition recorded to make the memorandum or record or to transmit information thereof to be included in such memorandum or record; and the memorandum or record was made at or near the time of the act, event or condition recorded or reasonably soon thereafter. The records attached hereto are exact duplicates of the original, and it is a rule of the Texas Youth Commission to not permit the originals to leave my custody."

The State at trial objected to the introduction of the exhibit alleging the certification to be improper. Specifically, the State alleged that the certificate was improper because it stated that the report was compiled by an employee of the Texas Youth Commission, while the exhibit, on its face, was shown to have been prepared by an employee of the Harris County Department of Education. The trial judge sustained the State's objection and denied the admission of the exhibit.

On appeal, appellant contends that although the person making the psychological assessment was not an employee of the Texas Youth Council the record was clearly identified as being an official record of the Texas Youth Council and one of which the Council was charged with obtaining and using. Appellant points out that at the time he was under the jurisdiction of the Texas Youth Council Article 5143d, Section 25, Texas Revised Civil Statutes, empowered the council to "make use of law enforcement detentions, supervisory, medical, educational, correctional, segregative and other facilities, institutions and agencies within the State." Furthermore, appellant argues that under Article 5143d, Section 16, V.A.C.S., the Council was charged with keeping written records "of all examinations and of the conclusions based thereon, and of all orders concerning the disposition or treatment of every delinquent child subject to its control." Appellant argues that the exhibit was an official record of the Texas Youth Council which used many agencies, including the probation departments of the juvenile courts who referred delinquent children to it, as its agents for the preparation and collection of relevant sociological and psychological information on the delinquent children entrusted to it.

The State argues that the exhibit is not admissible under either Article 3731a,

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V.A.C.S., which provides for admission of domestic records or Article 3737e, V.A.C.S., the Business Records Act (repealed effective September 1, 1986, Texas Rules of Criminal Evidence) 1 and we agree. Clearly the proper predicate was not laid for admission of the exhibit under either Article 3731a or Article 3737e. That is, although the certificate alleged that the document was prepared by an employee of the Texas Youth Council, this was not the case. Both Article 3731a and 3737e require that an employee of the business or of the State generate the record sought to be admitted into evidence. See Dingler v. State, 768 S.W.2d 305, 306 (Tex.Cr.App.1989); Estes v. State, 162 Tex.Crim. 122, 283 S.W.2d 52, 54 (Tex.Cr.App.1955). See also Reed v. State, 811 S.W.2d 582 (Tex.Cr.App.1990).

Furthermore, after examining the exhibit we are persuaded that it does not have "the indicia of reliability" sufficient to insure the integrity of the fact finding process commensurate with the rights of confrontation and cross-examination. The exhibit shows that the author of the report relied on information gleaned from other sources including the Harris County Child Welfare Unit, the Child Guidance Center of Lake Jackson, the Houston Independent School District, and the Great Plains Boys Ranch. Thus the report contains double hearsay. Further, there is nothing in the report to show that the sources of information relied upon by the author were accurate. Moreover, there is nothing in the exhibit to show who performed the psychological tests on appellant and what the qualifications of that person were.

In Porter v. State, 578 S.W.2d 742 (Tex.Cr.App.1979), cert. denied, 456 U.S. 965, 102 S.Ct. 2046, 72 L.Ed.2d 491 (1982), we considered a similar situation. There, the State attempted to introduce into evidence several documents from Porter's federal parole file. These documents consisted of various letters discussing Porter's drug use and psychological problems, a warrant application which recommended that Porter's parole be revoked due to his drug use and failure to participate in treatment programs, and a report prepared by an employee of a drug addiction treatment facility which described Porter's poor participation in the treatment program and gave him a poor prognosis. These materials were admitted over Porter's objections and their admission was raised as a point of error on appeal. This Court reversed the conviction recognizing that although certain hearsay evidence may come within a recognized exception to the hearsay rules such evidence is not admissible if it does not have the indicia of reliability sufficient to insure the integrity of the fact finding process. Specifically, we held:

"The documents admitted in this case are letters, or copies of letters, which were kept or received in the District Parole Office in San Antonio. These letters contain hearsay upon hearsay, as well as opinions regarding appellant's mental and physical condition and his amenability to rehabilitation. The sources of these opinions are in most cases unnamed, and in no case are the authors or

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the unnamed sources shown to be competent to make the statements attributed to them. It defies reason to suggest that these letters, merely because they were collected in a file in a government office, have the indicia of reliability sufficient to insure the integrity of the fact finding process commensurate with the constitutional rights of confrontation and cross-examination." Porter, 578 S.W.2d at 746.

See also McCrary v. State, 604 S.W.2d 113, 115 (Tex.Cr.App.1980). We find that the reasoning in Porter may be applied in the instant case. 2 The trial court did not abuse its discretion when it denied the admission of the exhibit into evidence. Accordingly, appellant's point of error is overruled.

In his second point of error, appellant asserts that he was deprived of a jury comprising a fair cross-section of the community as guaranteed to him by the Sixth and Fourteenth Amendments in that the State struck all black jurors from the jury panel. This issue has been decided adversely to appellant in Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990). In Holland, the Court decided that "[a] prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury." 493 U.S. at 478, 110 S.Ct. at 806. 3 See Seubert v. State, 787 S.W.2d 68 (Tex.Cr.App.1990). See also Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); and Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). We overrule appellant's second point of error.

In several points of error, appellant contends that the trial court unduly restricted his voir dire examination and thereby deprived him of information needed for the intelligent exercise of his peremptory challenges. A defendant's constitutional right to counsel includes, under Article 1, Section 10, Texas Constitution, the right of his counsel to question the members of the jury panel in order to exercise intelligent peremptory challenges. Powell v. State, 631 S.W.2d 169...

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