Affirmed and Opinion filed March 21, 2013.




                                      In The


                    Fourteenth Court of Appeals

                               NO. 14-12-00162-CR




                         SHANEQUA TERRY, Appellant


                                        V.


                        THE STATE OF TEXAS, Appellee


                     On Appeal from the 228th District Court
                              Harris County, Texas
                         Trial Court Cause No. 1288605



                                  OPINION

      Appellant Shanequa Terry appeals her conviction of aggregate theft,
stemming from her applications for and receipt of food stamps. She challenges the
sufficiency of the evidence to support the conviction. In addition, she asserts the
trial court violated her rights under the Confrontation Clause of the United States
Constitution by admitting certain records into evidence. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged by indictment with the felony offense of theft in
connection with appellant’s applications for and receipt of food stamps. As alleged
in the indictment, “pursuant to one scheme and continuing course of conduct”
appellant unlawfully appropriated, by acquiring and exercising control over, food
stamps owned by the State with intent to deprive the State of that property. The
conduct was alleged to have occurred beginning on or about May 1, 2007, and
continuing through March 31, 2008, and November 1, 2009, and continuing
through December 31, 2009. The value of the food stamps was $3,026. Appellant
pleaded “not guilty” to the charged offense.

      At trial, the State presented evidence that appellant, a single mother of three
children, applied for assistance with the Supplemental Nutrition Assistance
Program (“SNAP”), a “food-stamp” program associated with the Texas Health and
Human Services Commission.         According to testimony at trial, the program
provides a “Lone Star Card,” a special debit card that contains a fixed amount of
money that a recipient may use to purchase food and other basic necessities.

      Generally, after an applicant files a handwritten application, a caseworker
from the Health and Human Services Commission interviews the applicant and
enters the applicant’s answers into a computer program during the interview.
According to the record, when calculating benefits, the caseworkers rely heavily on
applicants’ representations in entering information into the computer program.
Although caseworkers attempt to verify representations for accuracy, not all
employers are required to report employment information to the State, and, with
                                         2
respect to those that do report, the information could be two to three months old at
the time it is reported.

       Based on the information entered into the computer, a “generic worksheet”
is generated by the computer program. The generic worksheet reflects all of the
information that the computer program uses to calculate benefits awarded to the
applicant, including the interviewer’s work product, a synthesis of information
from the applicant’s handwritten application, supporting documents, and oral
responses given by the applicant at the interview. Recipients of the assistance may
apply every six months to renew the benefits.

       Kenneth Martin, a program supervisor for the Texas Health and Human
Services Commission, testified that an applicant’s eligibility for assistance and the
benefit amount is not determined by the caseworker; rather, “the [computer]
system determines” it. Martin further testified that income and household size are
primary factors for calculating benefits. According to Martin, if an applicant failed
to report income, the applicant could receive more benefits than the applicant
would be entitled to receive.

       The record reflects that the Texas Department of Health and Human
Services first received an application for SNAP benefits for appellant and two
children on May 8, 2007.1 As reflected in the handwritten application, appellant
had not worked in the prior three months. Appellant attended an interview with a
caseworker on May 21, 2007. A generic worksheet, State’s Exhibit 7, prepared
during the interview reflects the following statements:

                 appellant’s only income was from child support;


       1
           The document bears appellant’s purported signature and the date “4/11/07.”
                                                 3
                appellant had no other income or contributions from any other
                sources; and
                appellant had not worked in the past twelve months.
The record reflects that appellant was eligible for $408 in monthly SNAP benefits.
Although the generic worksheet was admitted into evidence, the caseworker who
conducted the interview with appellant did not testify.

      The record reflects that appellant filed a renewal application for SNAP
benefits on November 5, 2007, for herself and two children. The application
reflects that appellant had not worked in the prior three-month period. Appellant
attended an interview on November 16, 2007.                     A generic worksheet, State’s
Exhibit 4, compiled during appellant’s interview on November 16, 2007, reflects
the following statements:

                appellant’s only income was from child support; and
                appellant was looking for work.
Although the generic worksheet was admitted into evidence, the worker who
conducted the interview with appellant did not testify.

      It is undisputed that appellant continued to receive SNAP benefits through
December 2009. The record contains another application for renewal of SNAP
benefits, received on April 15, 2009, for appellant and three children.2                The
application reflects that appellant had not worked in the prior three months and
listed child support as appellant’s only income.

      The record reflects that appellant attended another interview with a
caseworker on October 22, 2009, but there was no application in the record
associated with this interview. As reflected in this generic worksheet, State’s

      2
          The record reflects that a third child was born in 2008.
                                                  4
Exhibit 2, generated during the interview, appellant continued to receive child
support, but was “no longer working for Pubsco, Inc. as of 7/15/2009.”         As
reflected in the generic worksheet, appellant also had received “vendor payments.”
The interviewer who prepared the generic worksheet did not testify.

      In June 2010, the Department of Health and Human Services initiated an
investigation of appellant’s SNAP benefits after the Texas Workforce Commission
reported that appellant had been receiving income from two companies: “Bargain
Network” and “Pubsco.”        Richard Ramirez, a senior investigator with an
investigative division of Texas Health and Human Services Commission,
conducted the investigation of welfare fraud. Ramirez obtained pay records from
the Bargain Network, reflecting a pay period for appellant beginning April 16,
2007, and that appellant’s last pay period ended in March 2008. Pay records from
Pubsco reflect that appellant first received a paycheck on September 11, 2009, and
that appellant’s last paycheck was dated January 8, 2010.

      Because Ramirez’s investigation for welfare fraud pertained to two relevant
time periods, he obtained the generic worksheets associated with appellant’s
receipt of SNAP benefits relevant to those time periods and compared them to the
employers’ records. Ramirez did not have access to the applications associated
with those same time periods. After reviewing those generic worksheets, Ramirez
determined that appellant’s income from Bargain Network and Pubsco had not
been reported to the Texas Health and Human Services Commission; none of the
generic worksheets reflected that she reported such income to a caseworker.

      Ramirez entered appellant’s pay information from Bargain Network into a
computer program, which calculated that, from May 2007 until March 2008,
appellant had received $2,798 more in benefits than she was eligible to receive.

                                         5
Based on appellant’s employment with Pubsco, appellant received $228 per month
more than she was entitled to receive in November 2009 and December 2009. In
all, appellant received $3,026 more in benefits than she should have received.
Ramirez testified that failing to report income would not have disqualified
appellant from receiving SNAP benefits, but that appellant’s income from her
employment at Bargain Network and Pubsco would have affected the amount of
benefits she was entitled to receive each month. According to Ramirez, appellant
was not entitled to receive any benefits in some months, based on appellant’s
income during that time.

      Ramirez testified that he interviewed appellant on October 12, 2010; the
recorded audio interview was offered into evidence. As reflected in the video,
appellant claimed to have reported income from the two part-time jobs to a local
SNAP office at “Greenspoint.”       Appellant claimed that SNAP records at the
Greenspoint office would reflect that she offered the information.          Ramirez
attempted to locate records of those telephone calls at the local office, but did not
locate them. Ramirez surmised that the records could be in storage in Austin,
Texas; he indicated he was unable to access them. Ramirez stated that if an
applicant already was working at the time of an application or interview, there
would be no need to report the same employment by telephone at a later date.
Ramirez filed a report with the Harris County District Attorney’s Office one month
later, which resulted in the charges against appellant.

      At the close of the State’s case, appellant moved for an instructed verdict,
which the trial court denied. The jury found appellant guilty of the charged
offense. Appellant was sentenced to 180 days’ confinement in state jail, probated
for two years. She now appeals the conviction.

                                          6
                              ISSUES AND ANALYSIS

Is the evidence sufficient to support appellant’s conviction for aggregate
theft?

      In her first issue, appellant challenges the sufficiency of the evidence to
support her conviction, claiming that reasonable doubt exists as to whether she
reported her part-time employment to the State when she applied for benefits. In
evaluating a challenge to the sufficiency of the evidence supporting a criminal
conviction, we view the evidence in the light most favorable to the verdict.
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on
appeal is not whether we, as a court, believe the State’s evidence or believe that
appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d
137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is
irrational or unsupported by proof beyond a reasonable doubt. Matson v. State,
819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the sole judge
of the credibility of the witnesses and of the strength of the evidence.” Fuentes v.
State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose
to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State,
707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting
evidence, we presume the trier of fact resolved conflicts in favor of the prevailing
party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614
(Tex. Crim. App. 1997).

      Unlawful appropriation of food stamps is chargeable under the general theft
statute. See Gomez v. State, 663 S.W.2d 662, 663–64 (Tex. App.—Corpus Christi
1983, no pet.); see also Ex Parte Mangrum, 564 S.W.2d 751, 756 (Tex. Crim. App.
                                         7
1978) (providing that unlawfully obtaining welfare assistance is properly charged
under the general theft statute). A person commits the offense of theft if that
person unlawfully appropriates property with intent to deprive the owner of the
property. See Tex. Penal Code Ann. § 31.03(a) (West Supp. 2012). As alleged in
this case, a person commits the offense, a state jail felony, if the property
unlawfully appropriated is valued at $1,500 or more, but less than $20,000. See
Tex. Penal Code Ann. §§ 31.03(a), 31.03(e)(4)(A) (West Supp. 2012). A person
acts with intent when it is the person’s conscious objective or desire to engage in
the conduct or cause the result. Tex. Penal Code Ann. § 6.03(a) (West 2011).
Appropriation of property is unlawful if it is “without the owner’s effective
consent.” Tex. Penal Code Ann. § 31.03(b)(1). Consent is not effective if it is
induced by deception or coercion. Tex. Penal Code Ann. § 31.01(3)(A) (West
Supp. 2012). Deception means “[c]reating or confirming by words or conduct a
false impression of law or fact that is likely to affect the judgment of another in the
transaction, and that the actor does not believe to be true.” Tex. Penal Code Ann. §
31.01(1)(A). Intent may be inferred from the circumstances. See Smith v. State,
965 S.W.2d 509, 518 (Tex. Crim. App. 1998); Reed v. State, 158 S.W.3d 44, 48
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

      The Texas Penal Code allows multiple thefts committed pursuant to one
scheme or continuing course of conduct—even at different times and against
different victims—to aggregate within one offense for the purposes of determining
the grade of the offense.” Tex. Penal Code Ann. § 31.09 (West 2011); Anderson v.
State, 322 S.W.3d 401, 407–08 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
Aggregation under section 31.09 creates a single offense for purposes of
jurisdiction, punishment, and statute of limitations. Graves v. State, 795 S.W.2d
185, 187 (Tex. Crim. App. 1990); Anderson, 322 S.W.3d at 408. Each individual
                                          8
theft and its elements become an element of the aggregate theft offense. State v.
Weaver, 982 S.W.2d 892, 893 (Tex. Crim. App. 1998); Anderson, 322 S.W.3d at
408. A theft is complete when all the elements have occurred. Barnes v. State,
824 S.W.2d 560, 562 (Tex. Crim. App. 1991), overruled on other grounds by
Proctor v. State, 967 S.W.2d 840, 842 (Tex. Crim. App. 1998); Anderson, 322
S.W.3d at 408. Theft is not a continuing offense as it does not continue as long as
the actor retains control of the property. Barnes, 824 S.W.2d at 562; Anderson,
322 S.W.3d at 408. Likewise, the aggregate-theft statute does not convert theft
into a continuing offense. See Dickens v. State, 981 S.W.2d 186, 188 (Tex. Crim.
App. 1998) (providing that aggregate theft is the sum of all its “parts” and that a
part is a completed theft whose elements have all been proven). Aggregate theft is
an offense with continuing conduct that ends with the last theft and not after. Tita
v. State, 267 S.W.3d 33, 35 n.1 (Tex. Crim. App. 2008) (providing that date of the
last theft is the end date of the scheme or continuing course of conduct); Anderson,
322 S.W.3d at 408.

      Circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor, and circumstantial evidence, alone, is sufficient to establish guilt.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). While an inference is
a conclusion reached by considering other facts and deducing a logical sequence
from those facts, speculation is mere theorizing or guessing about the possible
meaning of facts and evidence.        Id. at 16.   Although a conclusion based on
speculation may not be unreasonable, it is not sufficiently based on facts or
evidence to support a finding beyond a reasonable doubt. See id.

      The record reflects that Ramirez obtained pay records from Bargain
Network and Pubsco, showing that appellant was receiving income from April
2007 through March 2008 and from September 2009 through January 2010.
                                           9
Ramirez testified that he obtained generic worksheets3 prepared during appellant’s
interviews with caseworkers during each of the periods of alleged fraud. Ramirez
determined that none of the generic worksheets reflected that appellant reported the
income to the caseworker. See Tex. Penal Code Ann. § 31.01(1)(A) (defining
“deception” as creating a false impression through words or conduct that will
likely affect the judgment of another in a transaction that the actor does not believe
is true). The State’s evidence established that in May 2007 and November 2007,
and again in October 2009, appellant was employed when she applied for SNAP
benefits, interviewed with a caseworker, and ultimately received SNAP benefits as
a result of the applications or interviews.               It is undisputed that appellant
continuously received SNAP benefits from May 2007 through December 2009; the
record reflects that appellant was approved to receive and actually did receive
SNAP benefits for a six-month period after each application and interview. The
record reflects that on each of the applications and interviews, appellant failed to
report the income from Bargain Network or Pubsco and received in total $3,026
more in benefits than she should have received during those same intervals. On
each of these occasions, evidence that appellant applied for and received the
benefits without reporting income from Bargain Network or Pubsco supported the
jury’s finding that appellant unlawfully appropriated the benefits by deceiving the
Texas Health and Human Services Commission. See Tex. Penal Code Ann. §§
31.01(1)(A), 31.01(3)(A), 31.03(a), 31.03(b)(1). The evidence likewise supports



       3
          In her second issue, which we address below, appellant challenges the propriety of the
trial court’s admission of the generic worksheets. But, in a sufficiency review, a reviewing court
considers all evidence, whether properly or improperly admitted at trial, that the jury was
permitted to consider. Moff v. State, 131 S.W.3d 485, 488, 488–89 (Tex. Crim. App. 2004); see
Wooten v. State, 267 S.W.3d 289, 295 n.2 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).
                                               10
the conclusion that appellant intended to deprive the Texas Health and Human
Services Commission of the benefits. See Tex. Penal Code Ann. § 6.03(a).

      Appellant asserts that reasonable doubt exists on the record as to whether
appellant reported her employment at Bargain Network and Pubsco. Appellant
asserts that there is a two-year “gap” in the State’s proof that could have shown, as
appellant claimed, that appellant reported her income from Bargain Network and
Pubsco, in her interview with Ramirez. Appellant points to the October 2009
generic worksheet, reflecting statements that her employment ended at Pubsco in
July 2009, and asserts that this evidence suggests that documents from this two-
year “gap” would contain proof that she previously had disclosed her employment.
Appellant also asserts the same two-year “gap” exists in the indictment, noting that
despite the allegation of a continuing course of conduct, the indictment alleged
conduct that ended in March 2008, and began again in November 2009.

      As for appellant’s complaint that a two-year “gap” exists in the indictment,
the State did not allege aggregate theft during the times appellant had no income.
With aggregate theft, each individual theft offense is complete when all elements
have occurred. Anderson, 322 S.W.3d at 408. Theft is not a continuing offense,
continuing as long as the actor retains control of the property. See id. The record
reflects that appellant received benefits for a six-month period following the
applications or interviews in May 2007, November 2007, and October 2009. Each
time that appellant concealed her Bargain Network or Pubsco income in an
application or interview and then received SNAP benefits resulted in overpayment
of benefits and was a completed theft. See id. Whether appellant later disclosed
income is not relevant because the thefts were completed at the time she accepted
the benefits.     See id. (involving a defendant that continued to make
misrepresentations after elements of a theft were completed, but providing that the
                                         11
misrepresentations did not create a new theft since the prior thefts, comprising
aggregate theft, already were complete). Likewise, the fact that the State did not
present all of appellant’s applications or worksheets does not change the fact that
appellant committed the offense of theft in the aggregate. See Tex. Penal Code
Ann. §§ 31.03(a), 31.03(e)(4)(A); see Anderson, 322 S.W.3d at 408 (providing that
theft is completed when all of the elements of theft are met). Multiple thefts
committed pursuant to one scheme or continuing course of conduct at different
times and against different people may be aggregated within one offense for
purposes of the offense grade. Id. at 407–08.

      To the extent appellant relies on the statements in the October 2009 generic
worksheet about her work at Pubsco ending in July 2009 as evidence suggesting
she previously had to have informed caseworkers about her employment at Pubsco,
the record reflects that appellant did not begin to receive income or paychecks
from Pubsco until September 11, 2009, and that she remained employed at Pubsco
at the time of her October 22, 2009 interview with the caseworker. Given the
record evidence that appellant was untruthful about the dates she worked at
Pubsco, the jury was entitled to conclude that appellant’s explanation to Ramirez
about reporting the income at a later date was not credible. See, e.g., Fuentes, 991
S.W.2d at 271 (providing that the trier of fact “is the sole judge of the credibility of
the witnesses and of the strength of the evidence”); Sharp, 707 S.W.2d at 614
(providing that a trier of fact may choose to believe or disbelieve any portion of the
witnesses’ testimony).

      Appellant points to Martin’s testimony that proper procedures and protocols
are followed during applicants’ interviews with caseworkers in “most” cases,
suggesting incompetence on the part of caseworkers in failing to record appellant’s
statements about her income during an interview. Arguably, though it might be
                                          12
reasonable to infer that one of the caseworkers who interviewed appellant might
have failed include remarks in a generic worksheet that appellant earned income
from Bargain Network or Pubsco, the jury reasonably could have concluded from
all of the generic worksheets and all of the applications admitted into evidence that
appellant omitted information about her income and employment at the time of the
applications or interviews because it is undisputed that she was employed during
those times. See Smith, 965 S.W.2d at 518 (providing that intent could be inferred
from circumstances). A juror reasonably could infer that had appellant already
reported her income, she would have continued to include that income in
subsequent applications, especially given that she consistently reported child
support. See id. The record also contains Ramirez’s testimony that there would be
no need to report income at a later date if appellant already was employed at the
time of an application or an interview with a caseworker. The jury was entitled to
weigh Ramirez’s testimony and credibility and accept or reject it. See Fuentes,
991 S.W.2d at 271 (providing that the trier of fact “is the sole judge of the
credibility of the witnesses and of the strength of the evidence”); Sharp, 707
S.W.2d at 614 (providing that a trier of fact may choose to believe or disbelieve
any portion of the witnesses’ testimony).

      Viewing the evidence in the light most favorable to the verdict, the evidence
is sufficient to support beyond a reasonable doubt that appellant unlawfully
appropriated $3,026 from the Texas Health and Human Services Commission from
May 1, 2007, and continuing through March 31, 2008, and from November 1,
2009, continuing through December 31, 2009, with intent to deprive the Texas
Health and Human Services Commission of this sum. See Anderson, 322 S.W.3d
at 408. We find no merit in appellant’s challenge to the sufficiency of the evidence
supporting her conviction. Accordingly, we overrule appellant’s first issue.
                                         13
Did the trial court err in admitting into evidence worksheets from
caseworkers’ interviews with appellant?
          In her second issue, appellant claims the trial court erred in admitting three
of the generic worksheets used to calculate benefits that were compiled by state
employees who interviewed appellant.                     According to appellant, her Sixth
Amendment right to confrontation was violated by the admission of these
documents because the interviewers who prepared the reports did not testify. She
complains of Exhibits 2, 4, and 7, the generic worksheets generated following her
interviews with caseworkers. The record reflects that before trial, appellant sought
to suppress the admission of these worksheets, and the trial court overruled
appellant’s objections, and granted appellant a running objection. When the State
offered the generic worksheets into evidence, the trial court overruled appellant’s
renewed objections.

          The Confrontation Clause of the Sixth Amendment to the United States
Constitution states: “In all criminal prosecutions, the accused shall enjoy the right .
. . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The
Fourteenth Amendment to the United States Constitution makes the Confrontation
Clause binding on the States. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065,
1068, 13 L.Ed.2d 923 (1965). In Crawford v. Washington, after reviewing the
Confrontation Clause’s historical underpinnings, the United States Supreme Court
held that the Confrontation Clause guarantees a defendant’s right to confront those
“who ‘bear testimony’” against him. See 541 U.S. 36, 51, 68, 124 S. Ct. 1354,
1364, 158 L. Ed. 2d 177 (2004). A witness’s testimony against a defendant is thus
inadmissible unless the witness appears at trial or, if the witness is unavailable, the
defendant had a prior opportunity for cross-examination.4 Id., 541 U.S. at 54, 124

4
    The record is silent as to the unavailability of the caseworkers.
                                                   14
S. Ct. at 1365. The high court has limited the Confrontation Clause’s reach to
testimonial statements. Id., 541 U.S. at 68, 124 S. Ct. at 1374.

       To determine whether the admission of the generic worksheets violated the
Confrontation Clause, we must determine whether the statements in these
worksheets are testimonial.         See id.        Statements are testimonial when the
circumstances objectively indicate that there is no ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution. See Michigan v. Bryant, —U.S.—,—, 131
S. Ct. 1143, 1154–55, 1165, 179 L. Ed. 2d 93 (2011); Davis v. Washington, 547
U.S. 813, 822, 126 S. Ct. 2266, 2273–74, 165 L. Ed. 2d 224 (2006). Statements in
business records may be testimonial statements if they satisfy the foregoing legal
standard because the regularly conducted business activity may be “the production
of evidence for use at trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321,
129 S. Ct. 2527, 2538, 174 L. Ed. 2d 314 (2009). Statements are nontestimonial
when made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.5 See Bryant, —U.S. at—, 131 S. Ct. at
1154–55; Davis, 547 U.S. at 822, 126 S. Ct. at 2273–74. In circumstances not
involving ongoing emergencies, statements are nontestimonial if the primary
purpose of the interrogation is not to establish or prove past events potentially
relevant to later criminal prosecution. See Bryant, —U.S. at—, 131 S. Ct. at 1155.

       In determining whether the Confrontation Clause bars the admission of a
statement at trial, we must determine the “primary purpose of the interrogation” by
5
 As the Davis court did, we presume without deciding that the acts of the caseworkers may be
considered to be acts of the police. See Davis, 547 U.S. at 823, n.2, 126 S. Ct. at 2274, n.2.


                                              15
objectively evaluating the statements and actions of the parties to the encounter, in
light of the circumstances in which the interrogation occurred. See id., —U.S. at
—, 131 S. Ct. at 1162.       Whether an ongoing emergency existed when the
statements were made is an important circumstance that must be taken into
account. See id. This court must also consider the formality of the encounter
during which the statements were made. See id., —U.S. at—, 131 S. Ct. at 1160.
Formality is not the sole touchstone of the primary purpose inquiry.         See id.
Although formality suggests the absence of an emergency and therefore an
increased likelihood that the purpose of the interrogation is to “establish or prove
past events potentially relevant to later criminal prosecution,” informality does not
necessarily indicate the presence of an emergency or the lack of testimonial intent.
See id. A trial court’s legal ruling as to whether an out-of-court statement is
testimonial is a question of law that we review de novo. See Wall v. State, 184
S.W.3d 730, 742 (Tex. Crim. App. 2006).

      The parties have not cited and research has not revealed any precedent
addressing whether documents generated during interviews of a party seeking
government benefits contain testimonial statements. Although appellant claims
that the observations of the caseworkers, as reflected in the generic worksheets, are
testimonial in nature and argues that they were generated in anticipation of
litigation and were used for that purpose, the record does not support the assertion.
The record reflects that caseworkers with the Texas Health and Human Services
Commission review applications and certify applicants for welfare benefits
following an interview with an applicant. As reflected in the record, the objective
purpose of the caseworker’s interviews and generating the generic worksheets is to
gather and record information about an applicant’s current income and household
size, among other things, to determine future benefit amounts.
                                         16
      Appellant characterizes the reports as being prepared in an “investigative
setting.” According to appellant, because employees with the Texas Health and
Human Services Commission “generate” prosecutions, an interview with a
caseworker for SNAP benefits is in anticipation of litigation. She points to the
application for SNAP benefits, which references criminal prosecution for an
applicant’s failure to provide true information in applying for benefits. Although
the application contains a warning of criminal prosecution for an applicant who
does not provide true information, the record reflects that the primary purpose for
preparing and generating the generic worksheets is to document an applicant’s
statements to determine eligibility and the amount of an applicant’s SNAP
benefits. The record likewise establishes that there is an investigative division
within the Texas Health and Human Services Commission. The caseworkers who
interviewed appellant, however, are not part of that division, and the work they
performed in interviewing applicants and recording information provided by
applicants was not for an investigative purpose or in furtherance of an
investigation.   Though the application contains a warning pertaining to the
applicant’s duty to tell the truth, the worksheets were created for the purpose of
administering SNAP, a “food-stamp” program associated with the Texas Health
and Human Services Commission.
      An ongoing emergency did not exist when the worksheets were generated,
and the interviews may be considered a formal encounter.                Nonetheless,
objectively evaluating the statements and actions of the parties to the encounter, in
light of the circumstances in which the interviews occurred, the primary purpose of
the interrogation during these interviews is not to establish or prove past events
potentially relevant to later criminal prosecution. See Bryant, —U.S. at —,131 S.
Ct. at 1154–55. Therefore, the statements contained in the generic worksheets are
                                         17
not testimonial, and the trial court’s admission of the worksheets did not violate
appellant’s rights under the Confrontation Clause.      See id.   Accordingly, we
overrule appellant’s second issue.

      Having overruled each of appellant’s issues, we affirm the trial court’s
judgment.




                                       /s/    Kem Thompson Frost
                                              Justice



Panel consists of Justices Frost, Christopher, and Jamison.
Publish — TEX. R. APP. P. 47.2(b).




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