Spencer v. State, 02-21-00240-CR

CourtCourt of Appeals of Texas
PartiesPaul Spencer, Jr., Appellant v. The State of Texas
Docket Number02-21-00240-CR,02-22-00006-CR
Decision Date23 November 2022

Paul Spencer, Jr., Appellant

The State of Texas

Nos. 02-21-00240-CR, 02-22-00006-CR

Court of Appeals of Texas, Second District, Fort Worth

November 23, 2022

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court Nos. 1588781D, 1588780D

Before Sudderth, C.J.; Wallach and Walker, JJ.




Appellant Paul Spencer, Jr. appeals from two judgments adjudicating guilt on two separate counts of possession with intent to deliver a controlled substance[1] and revoking his probation. In two issues, Spencer asserts that the trial court erred (1) by admitting the State's community supervision records into evidence at the revocation hearing under the Rule 803(6) business records hearsay exception and (2) by failing to enter a separate plea from Spencer regarding his alleged probation violations in the second of his two cases. We will affirm.

I. Background

Spencer was indicted for two counts of possession with intent to deliver a controlled substance-one count for methamphetamine and one count for heroin. In October 2019, Spencer entered into a plea bargain with the State whereby adjudication of guilt was deferred on each count and Spencer was placed on 10 years' probation.[2]

In June 2021, the State, alleging that Spencer had violated the terms of his probation, filed a petition to proceed to adjudication on each count. Specifically, the


State alleged that Spencer had committed the following violations: (1) failure to report during multiple months; (2) failure to notify his community-supervision officer that he had changed his address; (3) failure to provide a urine sample as instructed; (4) failure to complete a Day Treatment Cognitive Track Program; and (5) failure to attend orientation for the aforementioned program on two separate dates.

In November 2021, the trial court held a probation revocation hearing. At the start of the hearing, the trial court called Case Number 1588781D-the heroin case- but did not call Case Number 1588780D-the methamphetamine case. At the beginning of the hearing, the trial court informed Spencer of the alleged probation violations and accepted Spencer's pleas of not true to each of those allegations. The trial court then proceeded with the hearing and allowed the State to call its witness. After the State asked its witness a few preliminary questions, the trial court interrupted to inquire whether the revocation hearing was intended to encompass one or both of Spencer's cases. After confirming that the hearing was meant to address both cases, the trial court called Case Number 1588780D and noted that "it has the same allegations that I just talked with Mr. Spencer about, but it's two different cases." However, the trial court never requested a separate plea from Spencer concerning the allegations in the second case.


The State's witness at the hearing was Laura Hebring, a business record custodian with the Tarrant County Community Supervision and Corrections Department (CSCD). Through her, Spencer's CSCD file was admitted into evidence.[3]

To establish the predicate for admitting the CSCD records, the State elicited the following testimony from Hebring:

State: And were those documents kept in the regular course of business for CSCD
Hebring: Yes.
State: And is it the normal course of CSCD's business to make and maintain these records?
Hebring: Yes.
State: And did an employee of CSCD make these records in accordance with the activities elicited by Defendant, Paul Spencer?
Hebring: Yes.
State: And were these entries made on or about the time of the activities or developments that were made known to CSCD by Paul Spencer?
Hebring: Yes.
State: And did the employee or representative that made these entries have actual knowledge of the activities and developments of Mr. Paul Spencer?
Hebring: Yes.
State: And are the records the exact duplicates of the original entries?
Hebring: Yes.

After laying this foundation, the State moved to admit the CSCD records into evidence, and Spencer's trial counsel asked to take Hebring on voir dire. Spencer's counsel asked Hebring one question: whether she had "complete[d] any affidavit attesting to the fact that [she was] the custodian of records of the[] documents." After Hebring responded that she had not, Spencer's counsel stated, "Improper predicate is my objection, Your Honor." The State responded that the CSCD records are self-proving and that Hebring was the custodian of the records. The trial court then asked Hebring if she was, in fact, the custodian and, based on her affirmative response, overruled Spencer's objection. Spencer's counsel made no further argument or clarification regarding the nature of the objection, and the CSCD records were admitted.

Spencer testified that he had been compliant with the terms of his probation until he contracted COVID-19 in November 2020. He stated that at one point he had been close to death and that his COVID-19 symptoms persisted even after he no longer tested positive. He denied missing a urinary analysis test and recalled attending


his required appointments, including the Day Treatment Cognitive Track Program classes.

At the conclusion of the hearing, the trial court found all of the alleged probation violations in the State's petition to be true, adjudicated Spencer's guilt on both counts of possession with intent to deliver a controlled substance, and sentenced him to five years' confinement on the heroin count and four years' confinement on the methamphetamine count.[4]

This appeal followed.

II. Discussion

On appeal, Spencer raises two issues. First, he argues that the trial court erred by admitting the CSCD records because the State did not establish that they were business records under the criteria set forth in Rule 803(6) of the Texas Rules of Evidence. Second, he argues that the trial court erred by failing to enter a separate plea from Spencer to the alleged probation violations in his second case concerning the methamphetamine charge.[5] We will address each of these issues in turn.


A. Issue One: Admission of the CSCD Records

In his first issue, Spencer asserts that the trial court erred by admitting the CSCD records because the State failed to satisfy all of the requirements for their admission as records kept in the course of a regularly conducted business activity.[6]Tex. R. Evid. 803(6). Specifically, Spencer argues that the State failed to show that making the records was a regular practice of the CSCD's activities. Id. The State...

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