                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00164-CR
        ______________________________


    CHRISTOPHER MARK BREWER, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




    On Appeal from the 6th Judicial District Court
               Lamar County, Texas
               Trial Court No. 24193




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                         MEMORANDUM OPINION

           Christopher Mark Brewer appeals from his final adjudication of guilt, at which time he was

sentenced to twenty-four months in a state jail facility.1 The final adjudication was based on a

single alleged violation of his conditions of community supervision—a failure to successfully

complete a term of confinement and treatment in a substance abuse treatment facility.

           Brewer argues that the adjudication should be reversed because the only evidence was a

letter that was not admissible under TEX. R. EVID. 803(8) and that its admission over his objection

violated his right to confrontation pursuant to Crawford v. Washington, 541 U.S. 36 (2004).

           The State alleged Brewer had not successfully completed SAFP or SAFPF. SAFP is the

“Substance Abuse Felony Program.”2 SAFPF refers to the “Substance Abuse Felony Punishment

Facilities.”3

           Brewer first argues the document showing his failure to satisfactorily complete the

program was inadmissible hearsay.




1
 Originally, Brewer’s adjudication of guilt was deferred and he was placed on five years’ community supervision.
The terms included his attending and completing the SAFP program and abiding by all the rules of the treatment
center. The judgment indicates that SAFP order ran concurrently with a Madison County, Texas, case.
2
    TEX. CODE CRIM. PROC. ANN. art. 42.12, § 14(a) (West Supp. 2011).
3
    TEX. GOV’T CODE ANN. § 493.009 (West Supp. 2011).

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I.     Evidence Rule 803(8)

       The letter is written on Texas Department of Criminal Justice letterhead and signed by the

SAFPF release coordinator. It was sent to the trial judge explaining Brewer’s discharge from the

program due to his poor behavior and requesting his transport back to Lamar County.

       The trial court took notice of the court’s file, including the report. The issue as phrased on

appeal is that the document was inadmissible under Rule 803(8). That rule states:

              The following are not excluded by the hearsay rule, even though the
       declarant is available as a witness:

              ....

              (8)    Public Records and Reports. Records, reports, statements, or
       data compilations, in any form, of public offices or agencies setting forth:

              (A)     the activities of the office or agency;

             (B)    matters observed pursuant to duty imposed by law as to which
       matters there was a duty to report, excluding in criminal cases matters
       observed by police officers and other law enforcement personnel; or

                (C)     in civil cases as to any party and in criminal cases as against the
       state, factual findings resulting from an investigation made pursuant to authority
       granted by law;

              unless the sources of information or other circumstances indicate lack of
       trustworthiness.

TEX. R. EVID. 803(8) (emphasis added).




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II.    Classification of the Release Coordinator as “law enforcement personnel”

       The above rule dictates that matters observed by police officers or other law enforcement

personnel are subject to the hearsay rule. The initial question is whether the coordinator is

considered as “law enforcement personnel.”

       In this case, the document indicates on its face it was prepared by an employee of the Texas

Department of Criminal Justice–Community Justice Assistance Division who worked as a release

coordinator in a facility-based substance abuse program. The SAFPF facility is designed to

“confine and treat” the defendants sentenced to its care. TEX. GOV’T CODE ANN. § 493.009(a)

(West Supp. 2011). The coordinator had a duty to make the report to the judge who had placed

Brewer on community supervision if the facility determined “that the defendant is not complying

with the rules” of the facility. The court is to reassume custody of the defendant within twelve

days after such notice. TEX. GOV’T CODE ANN. § 493.009(f)(2)–(3) (West Supp. 2011).

       We conclude that a release coordinator for the Texas Department of Criminal Justice

reporting a defendant’s noncompliance with the facility’s rules to a sentencing court for its further

action is acting as “law enforcement personnel” as contemplated by the rule.

III.   The Nature of the Report

       Even though the rule provides that reports of matters “observed by police officers or other

law enforcement personnel” are not excluded from the impact of the hearsay rule, the Texas Court

of Criminal Appeals has held that even matters observed by police officers are admissible if the



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observations were made and recorded in a ministerial way. Pondexter v. State, 942 S.W.2d 577,

585 (Tex. Crim. App. 1996). The court stated that the reasons for possible impairment of

judgment of the police officers and law enforcement personnel are not implicated in situations

where officers are conducting routine business matters, such as recording objective observations.

Id.

       Reports made by those investigating a crime have been held to be clearly outside the

admissibility exception of the rule. In applying the rule, the policy considerations as articulated

by the Texas Court of Criminal Appeals reason that Rule 803(8)(B) does not necessarily apply to

law enforcement reports that are prepared in a nonadversarial setting, that are unrelated to any

specific litigation, and that record objective, neutral observations. See id.

       First, we look to see whether the report is an objective, routine determination of

unambiguous facts prepared by an official with no inherent motivation to distort the results. See

Garcia v. State, 868 S.W.2d 337, 341 (Tex. Crim. App. 1993). The letter is a statement notifying

the court Brewer failed the program and asking the court to bench warrant him back to Lamar

County. The remainder of the report is a summary of specified disruptive behavior, quoting

statements made by Brewer to other participants in the program. The letter is clearly objective in

nature, a recitation of action by the facility. The remainder of the report is less so––being a

summary of observed behavior explaining why Brewer had been failed from the program.




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       The subjective degree of the report is considered in determining whether the official had a

motive to distort the report’s results. Id. The letter is not subjective, but there is a subjective

element to the recitations in the attachments. The first prong of the test decidedly falls in favor of

concluding that the letter was properly admissible, but much less so to the attachments.

       We are also to consider the adversarial context in which the report was prepared in

determining the admissibility of that report. Id. at 342. The document indicates the date of its

creation, and it is clearly a part of the duties of the individual to carry out the orders of the trial

court in making such a report, and it is thus made in the ordinary course of his or her duties.

       In a lengthy pair of footnotes, the Texas Court of Criminal Appeals recently described the

application of the rule allowing admission of law enforcement reports not prepared for purposes of

adversarial proceedings or prosecution of a defendant. The court explained why the parallel

federal rule of evidence was created, and distinguished incident or crime reports from “ordinary,

routine duties” such as recording property or taking fingerprints, as being recordations of

unambiguous routine or ministerial objective observations. In making these distinctions, the

court pointed out the difference in purpose: focusing on the investigative nature of inadmissible

law enforcement reports, or their purpose to facilitate or even encourage prosecution. Fischer v.

State, 252 S.W.3d 375, 382–83 nn.29–30 (Tex. Crim. App. 2008).

       In this case, the release coordinator had a statutory duty to prepare the return request and to

inform the trial court whether Brewer had passed or failed the course. TEX. GOV’T CODE ANN.



                                                  6
§ 493.009(f)(2)–(3). In relevant part, after stating that he had failed to complete the program and

listing the types of violations, the release document reads as follows:

       Since being in program client has received 5 learning experiences, 2 TDCJ case and
       placed in treatment separation. Due to the seriousness of this infraction the
       treatment team is recommending a behavioral discharge.

       Therefore, in accordance with Section 493.009 (I) (2-3) of the Government Code,
       the treatment and security professionals at the SAFPF have requested client be
       picked up by June 29, 2011, giving the court (12) days within which to resume
       custody of the offender.

       We respectfully request the issuance of a bench warrant for the transportation of
       this offender to your jurisdiction by the county sheriff in advance of the release date
       above.

       The letter is ministerial/administrative in nature created by the coordinator pursuant to a

duty imposed by law. The letter itself is a notice that officials of the facility are recommending

Brewer’s discharge and advising the court to resume custody within the statutory time period.

The detailed attachments explaining the specific conduct of Brewer that led to the conclusion that

he was not complying with the center rules are similar to a report of a criminal investigation, and

although they were not necessarily created for the purpose of facilitating a prosecution against

Brewer for his misdeeds while in the institution, we find those portions of the documents to fall on

the inadmissible side of the spectrum.

IV.    The Document Was Partly Admissible and Partly Inadmissible

       We review the trial court’s decision to admit evidence under an abuse of discretion

standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). When an exhibit


                                                 7
contains both admissible and inadmissible evidence, the burden is on the objecting party to

specifically point out which portion of the evidence is inadmissible. Whitaker v. State, 286

S.W.3d 355, 369 (Tex. Crim. App. 2009); Reyes v. State, 314 S.W.3d 74, 78 (Tex. App.—San

Antonio 2010, no pet.).

       A trial court does not abuse its discretion when it admits the exhibit in its entirety if the

objecting party fails to segregate the admissible from the inadmissible. See Whitaker, 286

S.W.3d at 369. Brewer objected to the entire document, including attachments, and did not

request specific portions to be excluded. Because the letter is admissible as described above, the

trial court did not abuse its discretion by admitting the letter as evidence, and the letter shows

Brewer did not meet the conditions imposed by the court.

V.     Two Issues We Cannot Reach

       Brewer lists as an issue a claim that without the document above, there is no evidence to

support the adjudication. He did not brief the sufficiency argument. Where a point of error is

inadequately briefed, we will not address it. Vuong v. State, 830 S.W.2d 929 (Tex. Crim. App.

1992). We will not brief an appellant’s case for him or her. Heiselbetz v. State, 906 S.W.2d 500,

512 (Tex. Crim. App. 1995). Our conclusion that the trial court did not abuse its discretion in

admitting the entire document essentially negates this argument. The letter and attachments

provided sufficient evidence that Brewer had violated the terms of his community supervision by

failing to abide by all the rules of the center. Additionally, Brewer’s community supervision



                                                 8
officer testified Brewer had been discharged and had failed to complete the program. The State

must prove by a preponderance of the evidence that the defendant violated a term of his

community supervision to justify adjudication, and we review the evidence’s sufficiency under an

abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006);

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). As there is evidence that Brewer

violated the term, we conclude the trial court did not abuse its discretion by finding such a

violation and revoking his community supervision.

       Brewer also argues his right to confrontation was violated by admission of the document.

To preserve denial of a right to confrontation error, one must specifically object based on the

Confrontation Clause. Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991); Acevedo

v. State, 255 S.W.3d 162, 173 (Tex. App.—San Antonio 2008, pet. ref’d). Because the trial

objection was not based on such a violation, no error is preserved. TEX. R. APP. P. 33.1. The

contention of error is overruled.

       We affirm the judgment of the trial court.




                                            Jack Carter
                                            Justice

Date Submitted:        February 9, 2012
Date Decided:          February 28, 2012

Do Not Publish


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