









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,479


DEMETRIUS DEWAYNE SMITH, Appellant

v.


THE STATE OF TEXAS




ON DIRECT APPEAL
FROM CAUSE NO. 1021168 IN THE 183RD DISTRICT COURT
HARRIS COUNTY


 Keasler, J., filed a concurring opinion. 

CONCURRING OPINION 


	I join the Court's opinion with the exception of its resolution of points of error
eighteen and nineteen. (1)
  I would hold that State's Exhibits 73 and 74, the TDCJ-ID
penitentiary packets containing disciplinary reports and hearing records concerning
Demetrius Dewayne Smith's past prison conduct, are business records that do not constitute
testimonial hearsay under Crawford v. Washington. (2)   The analysis set out in Ohio v. Roberts (3)
controls, and because the records fall within a firmly rooted hearsay exception, Smith's rights
under the Confrontation Clause were not violated. 

DATE DELIVERED: May 6, 2009
PUBLISH
1.   Russeau v. State, 171 S.W.3d 871, 887-88 (Tex. Crim. App. 2005) (Keasler, J.,
dissenting.).
2.   541 U.S. 36 (2004).
3.   448 U.S. 56 (1980).
