           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

      K EASLER, 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



      1
         Russeau v. State, 171 S.W.3d 871, 887-88 (Tex. Crim. App. 2005) (Keasler, J.,
dissenting.).
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




       2
           541 U.S. 36 (2004).
       3
           448 U.S. 56 (1980).
