Lucas v. State
Decision Date | 05 November 1986 |
Docket Number | No. 149-84,149-84 |
Citation | 721 S.W.2d 315 |
Parties | Larry Wayne LUCAS, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Terrence Gaiser, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty. and James C. Brough and Doug Durham, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of theft over $200.00. Punishment enhanced by one prior conviction was assessed at fifteen years' confinement. The Waco Court of Appeals reversed appellant's conviction and entered an order of acquittal after finding that there was no competent evidence to establish the value of the stolen property. Lucas v. State, 672 S.W.2d 240 (Tex.App.--Waco 1983).
Appellant was charged with stealing a shipping crate containing eleven grinding discs from a warehouse at the Port of Houston. The State attempted to prove the value of the property stolen through the testimony of Lita Williams, an employee of Maersk Line Agency. Williams testified that the Maersk Line Agency was a steamship company which imports and exports cargo. Williams brought with her the documents in her custody that pertained to the stolen property. Prior to introducing these documents into evidence, the State attempted to establish the predicate required by Article 3737e, V.A.C.S., the Business Records Act:
The State then attempted to introduce the documents into evidence. Appellant raised several objections including the fact that the State had not demonstrated that the documents were prepared by someone with personal knowledge of the information contained therein. Out of the presence of the jury, the court indicated that it believed the State had properly proved up the predicate but allowed appellant to voir dire the witness. The following occurred during this voir dire examination:
* * * "Q. ... So that the person who prepared this document didn't have personal knowledge of the items, what she was making notations about, is that correct?
Following this testimony, the court ruled that the documents would be admitted into evidence. The jury was returned to the courtroom and the prosecution had the witness testify as to the contents of the exhibit. This testimony included the fact that the value of the cargo was $463.00.
The Court of Appeals reversed the conviction because the State failed to establish either that someone with personal knowledge made the record or that someone with personal knowledge transmitted the information to be included in the record.
The State contends in its petition as it did before the Court of Appeals that State's Exhibit 15 was in fact a bill of lading and under V.T.C.A., Business and Commerce Code, § 1.202 was self-proving. Thus, the State argues it did not have to lay the predicate required by Article 3737e, supra. The Court of Appeals, relying on Comment 2 to V.T.C.A., Business and Commerce Code, § 1.202, supra, rejected this argument and held that since the instant case involved a criminal prosecution and did not arise out of a contract between the parties involved in the prosecution, the document was not admissible under V.T.C.A., Business and Commerce Code § 1.202, supra.
We find it unnecessary to address the issue concerning V.T.C.A., Business and Commerce Code, § 1.202, supra, and how it relates to the instant case because neither of the documents making up State's Exhibit 15 is a bill of lading. The document 2 containing the value of the cargo is enumerated "Customs Form 7512" and is titled "TRANSPORTATION ENTRY AND MANIFEST OF GOODS SUBJECT TO CUSTOMS INSPECTION AND PERMIT." The second document contains the following paragraph:
We now turn to the requirements of Article 3737e, V.A.C.S. 3 The proponent of a business record must prove that (1) it was made in the regular course of business, (2) it was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record; and (3) it was made at or near the time of the act, event or condition or reasonably soon thereafter. Article 3737e, Section 1, supra.
An examination of the testimony set out above shows that ...
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