                                    NO. 07-00-0492-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                   MARCH 18, 2002
                           ______________________________

                                 LYNN STERLING HARDY,

                                                           Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                 Appellee
                         _________________________________

              FROM THE 183rd DISTRICT COURT OF HARRIS COUNTY;

                NO. 823,267; HON. WOODROW DENSEN, PRESIDING
                        _______________________________

Before BOYD, C.J., QUINN and REAVIS, JJ.

       Lynn Sterling Hardy (Hardy) appeals his conviction for theft. Through five points of

error, he contends that the trial court abused its discretion in admitting various exhibits over

his hearsay objection. Furthermore, because the exhibits were inadmissible hearsay, the

trial court also denied him his constitutional right to confront and cross-examine his

accusers, he continues. We reverse the judgment.
                                                 Background

      The State indicted appellant for theft of property having a value exceeding $20,000.

The property consisted of “dump pumps.”1 Allegedly, he converted the pumps from his

employer Hyseco, Inc. and sold them to others. Hyseco discovered that pumps were

missing and began to contact potential customers for same. At least four entities which

were contacted admitted to buying pumps from appellant. So too did they acknowledge

that the pumps appeared to them to be the property of Hyseco, after a Hyseco

representative described them.

       The evidence from which the controversy before us arose concerned State’s

Exhibits 10 and 12. The former contained information given to Hyseco employees by the

company’s security service. It purported to show the times at which company employees,

including appellant, entered the facility. The latter exhibit (i.e. 12) contained a letter,

addressed to the local district attorney, from an “Anthony John Payne” (Payne) of Cape

Manufacturing Engineers, Cape Town, South Africa.                          According to the letter, Cape

Manufacturing made the pumps in question. Therein, Payne stated:

       This fax serves to confirm that the pumps returned by the Police to Hyseco
       and inspected by me on Thursday 14 October 1999 [sic] were of South
       African origin. This can be confirmed by the foundry identification and cast
       lot No. on the side of the Port End Cover.

       We have supplied these Pumps to three companies in the United States but
       the Hyseco pumps can be identified by the pitch of drilled holes used to hold
       on the name tag. Hyseco tag holes are 2 7/8" apart whilst the other
       customer tag holes are 1 3/4" apart.”




      1
          According to the reco rd, a “d um p pu m p” is a hydraulic pum p us ed o n du m p truc ks.

                                                         2
        Appellant objected to the foregoing exhibits as hearsay. So too did he argue that

they were not admissible business records within the scope of Texas Rule of Evidence

803(6). Finally, he posited that their admission would effectively deny him his constitutional

right to confront his accusers. However, the court overruled the objections and admitted

them.

                                 Points One Through Four

        Via his first four points of error, appellant questions the admission of Exhibit 12, in

particular the Payne letter. The evidence was allegedly inadmissible because it constituted

unreliable hearsay outside the scope of any hearsay exception. Furthermore, its admission

purportedly resulted in the denial of his right to confront and cross-examine his accusers.

We agree.

        Authority

        The applicable standard of review is one of abused discretion. As long as the trial

judge operates within the ambit of his discretion in deciding to admit or exclude evidence,

we should not disturb his decision, irrespective of what it may be. Feldman v. State, No.

73,654, 22 (Tex. Crim. App. Feb. 20, 2002); Montgomery v. State, 810 S.W.2d 372, 390

(Tex. Crim. App. 1990). In other words, decisions which come within the zone of

reasonable disagreement, when measured against pertinent law and the circumstances

before the trial court, do not evince abused discretion. Feldman v. State, No. 73,654, 22;

Montgomery v. State, 810 S.W.2d at 391.

        Next, hearsay consists of an out-of-court statement offered to prove the truth of the

matter asserted. TEX . R. EVID . 801(d); Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App.



                                               3
1999). Moreover, its tender by the State and receipt into evidence in a criminal proceeding

implicates the Confrontation Clause of the Sixth Amendment to the United States

Constitution. Guidry v. State, 9 S.W.3d at 149. This is so because the defendant is not

afforded the opportunity to confront the out-of-court declarant. Id. Yet, that such evidence

was admitted does not automatically result in the deprivation of the constitutional right.

Rather, error occurs when the evidence neither falls within a recognized exception to the

hearsay rule or has particularized guarantees of trustworthiness. Id. at 150; Muttoni v.

State, 25 S.W.3d 300, 305 (Tex. App.–Austin 2000, no pet.).

       Application of Authority

       As previously mentioned, the evidence in question encompasses a written

statement from an “Anthony John Payne” of Cape Manufacturing Engineers, Cape Town,

South Africa. Therein, he endeavors to identify pumps allegedly stolen by appellant as

those of Hyseco. He does so by describing the supposed uniqueness of the holes drilled

in them and used to affix Hyseco’s label to the item. Moreover, the missive was faxed to

the local district attorney after the latter or various police officers induced Payne to create

it for use in investigating and, no doubt, prosecuting the purported theft. Finally, proving

that the items belonged to the complainant was critical to the successful prosecution of

appellant.

       From the foregoing, it can be said that the contents of the letter represented out-of-

court statements of Payne. Not only did Payne identify the pumps as belonging to Hyseco

but also his testimony was offered to prove that supposed fact. In other words, they were




                                              4
offered as proof of the matter asserted. Thus, it is beyond question that they constituted

hearsay within the definition espoused by Guidry and the rules of evidence.

        Next, the State attempted to justify admission of the evidence by contending that

it fell within the business record exception to the hearsay rule, i.e. Texas Rule of Evidence

803(6). However, equally clear from the record before us is that the document was created

solely for the purpose of prosecuting criminal charges against appellant. This means that

it was made in anticipation of litigation, and, being made for that purpose, it cannot fall

within the category of a business record.              Dixon v. State, 940 S.W.2d 192, 195 (Tex.

App.–San Antonio 1996, no pet.) (holding that a list of missing items was not a business

record, for purposes of the hearsay rule, because it was developed in anticipation of

litigation); see Palmer v. Hoffman, 318 U.S. 109, 112-15, 63 S. Ct. 477, 479-81, 87 L. Ed.

645 (1943) (holding that statements obtained in anticipation of litigation were not business

records); Certain Underwriters v. Sinkovich, 232 F.3d 200, 204-205 (4 th cir. 2000) (holding

the same).2 Moreover, being made in anticipation of litigation, the statement is also

inherently unreliable. Cole v. State, 839 S.W.2d 798, 809 n.9 (Tex. Crim. App. 1990).

Given these circumstances, the two conditions upon which hearsay may be admitted

without violating a defendant’s Sixth Amendment right to confront his accusers were not

met at bar. See Muttoni v. State, 25 S.W.3d at 307-308 (holding that the improper

admission of hearsay violates an accused’s constitutional right to confront and examine

witnesses). Thus, the trial court erred in admitting the fax from Payne.



        2
         Our court of criminal appeals has recognized that judicial opinions interpreting the Federal Rules of
Evidence are helpful in interpreting our Texas Rules of Evide nce . Co le v. Sta te, 839 S.W .2d 798, 801 (Tex.
Crim . App . 1990). This is so be cau se o ur sta te rules are p attern ed a fter the fede ral rules . Id.

                                                      5
        Having found that the trial court’s decision was wrong, we must now determine

whether it caused appellant to suffer harm. In doing so, we turn to Rule 44.2 of the Texas

Rules of Appellate Procedure. Through it, the Court of Criminal Appeals directed us to

reverse the judgment if the error was of constitutional dimension and we are unable to

hold, beyond reasonable doubt, that it did not contribute to the conviction. TEX . R. APP.

PROC . 44.2(a). This requires us to assess whether “there was a reasonable possibility that

the error, either alone or in context, moved the jury from a state of nonpersuasion to one

of persuasion . . . .”3 Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)

(emphasis supplied). In performing this task, we gauge the error’s potential impact in light

of the other evidence and circumstances appearing of record. McCarthy v. State, No.

73,350, 2001 WL 1575803 (Tex. Crim. App. December 12, 2001). This does not mean

that if some other evidence exists upon which the verdict can be founded the error was

harmless. Id. Indeed, the independent evidence of guilt must be overwhelming before it

can ameliorate the mistake. Wesbrook v. State, 29 S.W.3d at 119; Muttoni v. State, 25

S.W.3d at 308. With this said, we turn to our analysis of whether the error at bar was

harmful.

        Incremental to establishing appellant’s culpability for the theft was proving that the

pumps belonged to Hyseco. As depicted in the testimony of one or more witnesses,

pumps of this ilk were not unique. Many companies made identical items. Indeed, one



        3
         W e do not read the Court of Criminal Appeals as saying that but for the improperly admitted
evidence, there m ust be no evidence which could have reaso nably persuaded the jury to find guilt. If this were
not so, then the m ere fact that the verdict enjo ys the s upp ort of legally sufficient evidence would be
determinative. Yet, we have been told time and time again, through cases such as McCarthy and W esbrook,
that the mere existence of some independent evidence supporting guilt is not enough reason to hold error
harm less.

                                                       6
witness viewed the units as common. So, in effort to establish that they belonged to

Hyseco, the State had a representative of Hyseco, Richard Wagoner, testify about how

Hyseco’s items were actually unique and that ownership could be illustrated by their

uniqueness.4 The purportedly unique characteristics consisted of the color of the paint

applied to the pumps, the foundry marks appearing thereon, the belief that Hyseco was

one of only two company’s that sold the pump in the United States, and the location of rivet

holes used to mount the Hyseco tag.

        As to color, the pumps were painted blue. However, the paint was applied by the

manufacturer, not Hyseco. And, whether it was a shade unique solely to those items

bought by Hyseco for resale, the record does not say. Furthermore, Hyseco was not the

sole distributor of the particular items. At least one or two other businesses sold them. So,

whether like pumps with similar coloring could have come from sources other than Hyseco

remained disputed.

        As to the foundry marks, they too were applied by the manufacturer, not Hyseco.

Furthermore, each pump appeared to have the same marking. Whether that particular

marking was unique to the units sold to Hyseco or was applied to every pump sold by the

manufacturer to every other distributor also fails to appear of record. According to

Wagoner, “[t]he manufacturer would have to answer that.”

        As to the number of entities that distributed the units in the United States on behalf

of Cape Manufacturing, Wagoner testified that there were only two. However, the accuracy




        4
          Evidence revealed that each pump had a unique serial num ber. Howe ver, Hyseco did not record
the serial num bers of its pumps. So, the serial numbers were of no use in identifying the owner of the items.

                                                      7
of his conclusion was rendered suspect by the very hearsay evidence in question. Payne

represented that Cape sold the pumps to three distributors.

       As to the location of the rivet holes in the pump casings, Wagoner’s own testimony

rendered that evidence less than definitive. He testified that the tags placed on the items

by Cape Manufacturing were done so in a specific manner. That is, the rivets were located

a certain distance from each other, and only those pumps sold to Hyseco had rivets so

spaced. Yet, under questioning, Wagoner said that he bought a pump from another Cape

Manufacturing distributor, which distributor was located in Mississippi. Furthermore, the

pump he acquired in Mississippi had rivet holes similarly spaced to those on his pumps.

Because Wagoner had legitimately bought a pump with like holes from another distributor,

it can hardly be said that the holes were unique to items sold by Hyseco.

       Moreover, while those who bought the pumps from appellant concluded that they

belonged to Hyseco, they did so on the basis of Wagoner’s general description of same.

They had no personal knowledge that Hyseco originally owned them. Nor could they so

conclude from merely looking at the pumps. Testimony indicated that inspection of the

items could have resulted in the identification of their manufacturer, but not their distributor.

To this was added the testimony that several different companies made pumps identical

to those allegedly stolen, that “lots of people sell them,” that they are common pumps, and

that the tags that appear on them are “about the same size.”

       From the foregoing, one can say that evidence of ownership by Hyseco

(independent of that contained in the Payne hearsay letter) appeared of record. So too

may that evidence be legally sufficient to support a finding of guilt. Yet, it was founded

upon the conclusions of Wagoner regarding the uniqueness of the pumps his company

                                               8
sold. And, as illustrated above, the evidence of their supposed uniqueness was short of

overwhelming. Also, to quell any further dispute regarding ownership, the State expressly

referred the jury, during closing, to the inadmissible hearsay letter of Payne. It cannot be

denied that a manufacturer’s statement that something is unique to items bought by a

particular distributor has persuasive value. Given these circumstances, we are unable to

conclude, beyond reasonable doubt, that the hearsay before us did not contribute to the

jury’s ultimate verdict, and this prohibits us from holding the error harmless.

        Accordingly, the judgment is reversed and the cause remanded to the trial court.5



                                                                             Brian Quinn
                                                                               Justice



Publish.




        5
         Having held as w e did re garding the adm ission of e xhibit 12, w e need not c onsider appellant’s
other issues.

                                                       9
