Coulter v. State

• Decision Date: 16 May 1973
• Docket Number: No. 45393,45393
• Citation: 494 S.W.2d 876
• Parties: Ronnie COULTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 876

494 S.W.2d 876

Ronnie COULTER, Appellant, v. The STATE of Texas, Appellee.

No. 45393.

Court of Criminal Appeals of Texas.

May 16, 1973.

M. Gabriel Nahas, Jr., Houston, for appellant.

Carol Vance, Dist. Atty., James C. Brough, Calvin Botley and William Burge, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction is for the sale of marihuana; the punishment, ten years imprisonment.

Richard Heath, a Federal Narcotics Agent, was qualified as an expert witness in the identification of marihuana. He testified that the material contained in three tobacco cans, which he had purchased from the appellant, was marihuana.

The appellant urges that it was reversible error to admit in evidence, over timely and proper objection, five exhibits, because they constitute hearsay evidence, and because he was deprived of his constitutional right to be confronted by the person who made the written entries on these exhibits.

It is the State's position that each exhibit was properly admitted under the provisions of Article 3737e, Vernon's Ann.Civ.St., ¹ the statutory Business Records Exception to the Hearsay Rule. ² and ³ State's Exhibit No. 1 is an envelope addressed to the 'Alcohol and Tobacco Tax Laboratory, 1114 Commerce St., Room 1023, Dallas 2, Texas.' The return address is 'Department of Justice, Bureau of Narcotics and Dangerous Drugs, 515 Rusk, Room 1602, Houston, Texas 77002.' It bears a stamp and number showing it was sent by Registered Mail with return receipt requested. There is a notation showing the receipt of the envelope on Thursday, January 2, 1969, and the initials KBA and CRP.

State's Exhibit No. 2 is a lock-sealing envelope. Heath put the tobacco cans in Exhibit No. 2 before he inserted it into the mailing envelope, Exhibit No. 1. Exhibit No. 2 bears the following information; the italicized portions having been placed on the printed form.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

TABLE

The back of the exhibit reads as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

TABLE

State's Exhibit No. 3 is a lock-sealing envelope in which the three Prince Albert tobacco cans containing the marihuana were placed at the laboratory. On the front of the envelope is a Food and Drug Administration form reading as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

TABLE

State's Exhibit No. 4 is a portion of a United States Treasury form reading as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

TABLE

State's Exhibit No. 5 is a Treasury Department form bearing the following information:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

TABLE

James H. Kluckholn, Chief Chemist in the Dallas Laboratory of the Bureau of Alcohol, Tobacco and of Narcotics and Dangerous Drugs, testified that he recognized the initials CRP and KBA, which appear on the exhibits, as being those of Charles R. Pyles and Kenneth B. Anderson. Both were chemists in the laboratory, and they were under his supervision in making the chemical analysis reflected by the records on which their initials appear. At the time of the trial, Pyles and Anderson were not available as witnesses because Pyles was recovering from surgery and Anderson was an employee of the United States Treasury Department in the Atlanta, Georgia office.

The State offered the testimony of Kluckholn, the Chief Chemist, to authenticate and lay a predicate, as required by Article 3737e, V.A.C.S., for the introduction of each exhibit. Exhibits 3, 4 and 5 were shown to have been made in the regular and usual course of the activities of the laboratory, at or near the time of the acts or events recorded, by those having personal knowledge of such acts or events. The sufficiency of the predicate for the admission of Exhibit No. 2 is not as clear.

The statement of some fundamental principles may be necessary to a discussion of the admissibility of evidence under the Business Records Act.

The right to cross-examine witnesses is implicit within the right to confrontation provided by the Sixth Amendment to the Constitution of the United States as applied through the Fourteenth Amendment. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1967); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) and Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).

The right to confront and cross-examine witnesses has also been held to be essential to due process and a fair trial within the provisions of the Fourteenth Amendment to the Constitution of the United States. E.g., In Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) and Chambers v. Mississippi, supra.

However, the right of confrontation and cross-examination is not Absolute. Chambers v. Mississippi, supra; Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Dutton v. Evans, supra, and California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

Confrontation and cross-examination are not essential where the evidence bears the indicia of reliability sufficient to insure the integrity of the fact finding process. Dutton v. Evans, supra; Mancusi v. Stubbs,supra; Kay v. United States, 255 F.2d 476 (4th Cir. 1958) and cf. Chambers v. Mississippi, supra; California v. Green, supra; Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969).

If the rights of confrontation and cross-examination were absolute, none of the exceptions to the Hearsay Rule would apply in criminal cases. In almost every criminal case evidence is admitted under one of the exceptions to the Hearsay Rule. Regularly kept business records are admissible as one of the well recognized exceptions. They are admissible in this state under the provisions of Article 3737e, V.A.C.S. ⁴

There is no doubt that the Business Records Exception to the Hearsay Rule is applicable in criminal cases. See Roddy v. State, 494 S.W.2d 174 (Tex.Cr.App.1973); Williams v. State, 492 S.W.2d 496 (Tex.Cr.App.1973); Thomas v. State, 493 S.W.2d 832 (Tex.Cr.App., 1973); Whitfield v. State, 492 S.W.2d 502 (Tex.Cr.App.1973); Mahaffey v. State, 471 S.W.2d 801 (Tex.Cr.App.1971); Batiste v. State, 462 S.W.2d 30 (Tex.Cr.App.1971); Fields v. State, 402 S.W.2d 740 (Tex.Cr.App.1966); Dagley v. State, 394 S.W.2d 179 (Tex.Cr.App.1965); Trujillo v. State, 166 Tex.Cr.R. 405, 313 S.W.2d 871 (1958); Leonard v. State, 161 Tex.Cr.R. 599, 278 S.W.2d 313 (1955) and Jackson v. State, 159 Tex.Cr.R. 228, 262 S.W.2d 499 (1953).

Records made in the regular course of business are admitted in the Federal Courts under the provisions of 28 U.S.C.A. § 1732. See its application in recent criminal cases. United States v. Henderson, 471 F.2d 204 (7th Cir. 1972); United States v. Gremillion, 464 F.2d 901 (5th Cir. 1972); United States v. Hedge, 462 F.2d 220 (5th Cir. 1972); United States v. Rogers, 454 F.2d 601 (7th Cir. 1971); United States v. Bohle, 445 F.2d 54 (7th Cir. 1971); Warren v. United States, 447 F.2d 259 (9th Cir. 1971); United States v. Haili, 443 F.2d 1295 (9th Cir. 1971) and United States v. Martin, 434 F.2d 275 (5th Cir. 1970).

However, in some circumstances, evidence within the ambit of a recognized exception to the Hearsay Rule is not admissible if it does not have the indicia of reliability sufficient to insure the integrity of the fact finding process commensurate with the constitutional right of confrontation and cross-examination. Chambers v. Mississippi, supra; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Berger v. California, supra; McDaniel v. United States, 343 F.2d 785 (5th Cir. 1965); United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970) and Phillips v. Neil, 452 F.2d 337 (6th Cir. 1971).

The United States Court of Appeal in four circuits have reversed cases where a form bearing similar information to State's Exhibit No. 2 in this case had been admitted into evidence. These cases which were reversed are: United States v. Brown, 451 F.2d 1231 (5th Cir. 1971); United States v. Adams, 385 F.2d 548 (2d Cir. 1967); ⁵ Sanchez v. United States, 293 F.2d 260 (8th Cir. 1961); and United States v. Ware, 247 F.2d 698 (7th Cir. 1957). ⁶

The language used by the court in United States v. Ware, supra, which follows, is equally applicable in this case.

'The exhibits were prepared out of the defendant's presence and contain the conclusions of government's witnesses as to matters which were in the jury's province to determine. They are clearly hearsay and inadmissible unless within an exception to the hearsay rule. The District Court admitted the exhibits into evidence on the theory that they qualified as business entries under the Shopkeeper's Rule, 28 U.S.C.A. § 1732.

'The exhibits or memoranda made by the narcotic agents however satisfy none of the requirements of section 1732. The government has not shown, in the language of the statute, that the statements were recorded in the regular course of business and that it was the regular course of business to make such memoranda or records. And even if memoranda such as the ones in question are regularly prepared by law enforcement officers, they lack the necessary earmarks of reliability and trustworthiness. Their source and the nature and manner of their compilation unavoidably dictate that they are inadmissible under section 1732. They are also subject to the objection that such utility as they possess relates primarily to prosecution of suspected law breakers, and only incidentally to the systematic conduct of the police business. Cf. Palmer v. Hoffman, supra (318 U.S. 109, 63 S.Ct. 477, 87...