Opinion issued December 28, 2012.




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00905-CR
                           ———————————
                 THERESA GARCIA INFANTE, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 178th District Court
                           Harris County, Texas
                       Trial Court Case No. 1218567



                                 OPINION

      A jury convicted Theresa Garcia Infante of the felony offense of theft by a

public servant of property with a value between $1,500 and $20,000 and sentenced

her to two years’ confinement, probated for two years. In three issues, Infante
challenges the sufficiency of the evidence to prove the value of the stolen property,

the trial court’s admission of an out-of-court statement, and the trial court’s failure

to submit an accomplice witness instruction. We affirm.

                                    Background

      While employed by Harris County as a deputy constable, Infante worked a

second job at a traffic control company. Infante’s supervisor at the traffic control

company was Billy Cable. Cable was arrested for theft of a golf cart, at which time

he was in possession of a police radio. The police traced the radio back to Precinct

6 of the Harris County Constable’s Office, where Infante was employed. Cable

told the police that he had purchased the radio from Infante. The State charged

Infante with stealing the radio—an offense heightened by the allegation that

Infante obtained the radio through her role as a public servant. See TEX. PENAL

CODE ANN. § 31.03(a), (e)(4)(A), (f)(1). Infante testified that she had not sold any

radio to Cable, but that she had lent Cable a radio; she asserted that the radio she

lent Cable was similar to the one stolen from the Harris County Constable’s Office,

but it was actually a radio owned by her husband’s employer.

      The jury convicted Infante and sentenced her to two years’ confinement,

probated for two years. This appeal followed.




                                          2
                    Legal Sufficiency of the Value Evidence

      One element of the crime for which the jury convicted Infante is that the

value of the stolen property was “$1,500 or more but less than $20,000.” See TEX.

PENAL CODE ANN. § 31.03(e)(4)(A). Infante challenges the legal and factual

sufficiency of the evidence to prove this element, contending that the State offered

no evidence of the stolen property’s fair market value and instead improperly

relied on evidence of the stolen property’s replacement value.

A.    Standard of review

      We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the verdict to determine whether any

rational fact-finder could have found the essential elements of the offense beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Evidence is

legally insufficient when the “only proper verdict” is acquittal. Tibbs v. Florida,

457 U.S. 31, 41–42, 102 S. Ct. 2211, 2218 (1982). We give deference to the jury’s

responsibility to resolve conflicts in testimony, weigh evidence, and draw

reasonable inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007).




                                         3
      We review the factual sufficiency of the evidence under the same appellate

standard of review as that for legal sufficiency. Brooks v. State, 323 S.W.3d 893,

894–913 (Tex. Crim. App. 2010).

B.    Value evidence

      The State presented testimony on the value of the stolen radio from Keith

LeJeune, a manager in the radio network operations center at Harris County’s radio

shop. At the time of trial, LeJune had worked at Harris County’s radio shop for two

years; before that, he worked at Harris County’s emergency management

department, where he was involved in managing radios and communications for

that department. LeJeune is certified in electronics and has been a licensed radio

operator for more than ten years.

      LeJeune was able to trace the stolen radio through its radio identification

number—a number the radio shop programs into Harris County radios for

tracking—and the radio shop’s records. He testified that Harris County purchased

the radio for $2,131.46 in 2000. Since that time, the radio’s manufacturer has

stopped producing the radio model that was stolen (the Motorola MTS 2000),

replacing it with a new model (the XTS 5000). An XTS 5000 may be purchased

without software and additional features for $1,700, but it will not operate without

the necessary software. LeJeune testified that it would have cost Harris County




                                         4
approximately $4,000 to replace the MTS 2000 radio with an operating XTS 5000

radio in 2008, when the radio was stolen.

      On cross-examination, LeJeune testified that the manufacturer no longer

made parts for the MTS 2000 and that the radio shop cannibalized parts from other

MTS 2000 radios to repair and replace parts on the MTS 2000 radios. He testified

that the MTS 2000 had “a low value” and that he would not purchase one. Counsel

for Infante repeatedly described the stolen radio as “obsolete,” and elicited

testimony from LeJeune agreeing with that description of the radio.

C.    Sufficiency of value evidence

      Under the Penal Code’s “Theft” chapter, the value of property is “(1) the fair

market value of the property . . . at the time and place of the offense; or (2) if the

fair market value of the property cannot be ascertained, the cost of replacing the

property within a reasonable time after the theft.” TEX. PENAL CODE ANN.

§ 31.08(a)(1), (2). The jury charge likewise defined “value” as “the fair market

value of the property . . . at the time and place of the offense, or if the fair market

value of the property cannot be ascertained, the cost of replacing the property

within a reasonable time after the theft.” Fair market value is “the amount the

property would sell for in cash, giving a reasonable time for selling it.” Keeton v.

State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991) (emphasis omitted); see Smiles

v. State, 298 S.W.3d 716, 719 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

                                          5
      The determinative issue here is whether the radio’s fair market value was

unascertainable, such that the State could rely on evidence of the radio’s

replacement cost under section 31.08(a)(2) of the Penal Code. See TEX. PENAL

CODE ANN. § 31.08(a) (defining “value” as the fair market value of the property at

the time and place of the theft or, “if the fair market value of the property cannot

be ascertained,” the cost of replacing the property within a reasonable time after

the theft). We hold that, under the circumstances of this case, the evidence was

sufficient to allow the jury to determine that the fair market value of the radio was

not ascertainable and to rely on evidence of the radio’s replacement cost.

      LeJeune testified that the 2000 model was no longer being manufactured, it

was difficult to repair because its parts likewise were no longer available and

therefore repairs required locating and taking parts from another radio of the same

model, it was “hard to get,” it had depreciated in value before it was stolen, it was

“obsolete,” and its value was “low” but he could not state an amount for its value.

He also testified that he “wouldn’t buy one.” More importantly, LeJeune

unequivocally testified that he was “not able to determine the fair market value of

the MTS 2000 because it’s been outdated.” The jury, therefore, could have

reasonably concluded that this evidence demonstrated that the 2000 model’s fair

market value in 2008 could not be ascertained; they therefore could rely on

evidence of its replacement cost.

                                         6
      Ascertainment of market value presupposes an existing, established market.

See Yazdani-Beioky v. Tremont Tower Condo. Ass’n, Inc., No. 01-10-00107-CV,

2011 WL 1434837, at *5 (Tex. App.—Houston [1st Dist.] Apr. 14, 2011, no pet.)

(observing that the determination of what willing buyer would pay willing seller

presupposes existing, established market) (citing Wendlandt v. Wendlandt, 596

S.W.2d 323, 325 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ). “For

example, the Texas Supreme Court has recognized, as a matter of common

knowledge, ‘that used household goods, clothing and personal effects have no

market value in the ordinary meaning of that term.’” Id. (quoting Crisp v. Sec. Nat'l

Ins. Co., 369 S.W.2d 326, 328 (Tex. 1963)). While such items may appear on eBay

or other resale markets from time to time, these sales may not be sufficiently

frequent or similar to allow ascertainment of an item’s market value.

      LeJeune did not concede the existence of an open market for the MTS 2000

or the value afforded to that model in such a market. Counsel for Infante asked

LeJeune if he would be surprised to learn that “you can find stuff like that on E-

bay for 124 bucks?” LeJeune responded that he would not be surprised and had

“seen them there before like that.” Infante’s counsel’s assertion embedded within

his question is not evidence; nor is LeJeune’s agreement evidence of the value of

the MTS 2000 in 2008. Not only were this question and answer vague, they were

not limited to the time of the theft.

                                         7
      The State’s evidence of the cost to replace the radio is legally and factually

sufficient to support the jury’s verdict. Under these circumstances, we hold that the

value evidence was sufficient to support the jury’s verdict.

      We overrule Infante’s first issue.

                      Hearsay and Right of Confrontation

      Infante’s second issue challenges the trial court’s admission of certain

testimony from LeJeune about the recovered radio. LeJeune testified that he gave

the recovered radio to a technician who pulled the serial number off the radio via

the programming cable. With the serial number, LeJeune was able to generate

certain information about the stolen radio and its post-theft use from the radio

shop’s database. Infante complains that LeJeune could not testify to or rely on the

radio’s serial number because LeJeune did not obtain the radio’s serial number

himself and therefore had no personal knowledge of the radio’s serial number

beyond what the radio technician told him, which was inadmissible hearsay.

Infante further complains that the admission of this hearsay violated Infante’s

constitutional right of confrontation because Infante did not have the opportunity to

cross-examine the other technician.

A.    Standard of Review

      Hearsay and Confrontation Clause objections are two separate issues,

governed by different standards of review. See Wall v. State, 184 S.W.3d 730,

                                           8
742–43 (Tex. Crim. App. 2006); Paredes v. State, 129 S.W.3d 530, 535 (Tex.

Crim. App. 2004). Hearsay invokes evidentiary rules, while the Confrontation

Clause invokes constitutional rights. See Paredes, 129 S.W.3d at 535. We review

hearsay challenges to a trial court’s admission of evidence under an abuse of

discretion standard. Wall, 184 S.W.3d at 743. We review a constitutional legal

ruling, such as whether a statement is testimonial or non-testimonial under the

Confrontation Clause, de novo.1 Id. at 742.

B.    Hearsay

      Even assuming that LeJeune’s testimony as to the radio’s serial number was

hearsay, the radio’s serial number was documented in other evidence admitted at

trial. Specifically, the State filed business records from the radio shop containing

the radio’s serial number and various other records relating to the radio.2 Infante



1
      The Court of Criminal Appeals observed:

             [T]he legal ruling of whether a statement is testimonial under
             Crawford is determined by the standard of an objectively reasonable
             declarant standing in the shoes of the actual declarant. On that
             question trial judges are no better equipped than are appellate judges,
             and the ruling itself does not depend upon demeanor, credibility, or
             other criteria peculiar to personal observation.

      Wall, 184 S.W.3d at 742–43.
2
      Although LeJeune did not personally obtain the radio’s serial number, his
      testimony connected the relevant business records to the specific radio in evidence
      at trial through his personal knowledge of, and involvement in, the investigation of
      the radio in the radio shop.

                                            9
made a hearsay objection to the admission of both LeJeune’s testimony as to the

radio’s serial number and the records containing the serial number.

       But business records filed pursuant to rule 803(6) of the Texas Rules of

Evidence are excepted from the hearsay rule. See TEX. R. EVID. 803(6); see also

Campos v. State, 317 S.W.3d 768, 777–78 (Tex. App.—Houston [1st Dist.] 2010,

pet. ref’d). Infante does not argue that the radio shop’s business records do not

satisfy the criteria of rule 803(6), and the records are not deficient on their face.3

Documents that comply with the specified categories of rule 803 are admissible

without regard to whether the declarant is available to testify. TEX. R. EVID. 803

(“The following are not excluded by the hearsay rule, even though the declarant is

available as a witness . . .”).




3
       Rule 803(6) provides:

              A memorandum, report, record, or data compilation, in any form, of
              acts, events, conditions, opinions, or diagnoses, made at or near the
              time by, or from information transmitted by, a person with
              knowledge, if kept in the course of a regularly conducted business
              activity, and if it was the regular practice of that business activity to
              make the memorandum, report, record, or data compilation, all as
              shown by the testimony of the custodian or other qualified witness,
              or by affidavit that complies with Rule 902(10), unless the source of
              information or the method or circumstances of preparation indicate
              lack of trustworthiness. “Business” as used in this paragraph
              includes any and every kind of regular organized activity whether
              conducted for profit or not.

       Tex. R. Evid. 803(6).

                                             10
      In the absence of any challenge to the sufficiency of the State’s business

records affidavit, we cannot hold that the trial court abused its discretion in

admitting the radio shop’s business records containing the recovered radio’s serial

number, over Infante’s hearsay objection. Although Infante objected that LeJeune

did not have any personal knowledge of the radio’s serial number, “[r]ule 803(6)

does not require that the person authenticating the record be either the creator of

the record or to have personal knowledge of the information recorded therein.”

Campos, 317 S.W.3d at 777–78 (quoting Canseco v. State, 199 S.W.3d 437, 440

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)). “Rather, the testifying witness

need only have knowledge of how the record was prepared.” Id. at 778. Here, the

affiant swears to such knowledge in the affidavit, and Infante has not contested this

declaration.

      Because the trial court did not abuse its discretion in admitting the business

records containing the radio’s serial number, LeJeune’s testimony as to the radio’s

serial number was duplicative of properly admitted evidence. Even assuming that

LeJeune’s testimony as to the radio’s serial number constituted inadmissible

hearsay, any error in admitting the testimony did not harm Infante. See, e.g.,

Greene v. State, 287 S.W.3d 277, 285 (Tex. App.—Eastland 2009, pet. ref’d)

(holding that admission of witness’s testimony was not harmful because testimony

was duplicative of defendant’s statement on same matter); Land v. State, 291

                                         11
S.W.3d 23, 28 (Tex. App.—Texarkana 2009, pet. ref’d) (holding admission of

hearsay evidence was not harmful because it was cumulative of other, properly

admitted evidence); Smith v. State, 236 S.W.3d 282, 300 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d) (holding that the erroneous admission of hearsay was

harmless because the same information was properly in evidence through another

source). “The admission of inadmissible evidence becomes harmless error if other

evidence proving the same fact is properly admitted elsewhere[.]” Land, 291

S.W.3d at 28 (citing Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999),

Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986), and Sanchez v.

State, 269 S.W.3d 169, 172 (Tex. App.—Amarillo 2008, pet. ref’d)).

      The    erroneous admission of a hearsay statement constitutes non-

constitutional error that is subject to a harm analysis under Rule 44.2(b) of the

Texas Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(b); Campos, 317

S.W.3d at 779 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998); Land, 291 S.W.3d at 28. Under Rule 44.2, “[a]ny [non-constitutional] error,

defect, irregularity, or variance that does not affect substantial rights must be

disregarded.” TEX. R. APP. P. 44.2(b). Because the admission of LeJeune’s

testimony as to the radio’s serial number did not harm Infante, we may not reverse

the trial court’s judgment on that basis, even if that testimony constituted




                                       12
inadmissible hearsay. See TEX. R. APP. P. 44.2(b); Campos, 317 S.W.3d at 779;

Land, 291 S.W.3d at 28.

C.    Confrontation Clause

      The Confrontation Clause of the Sixth Amendment of the United States

Constitution provides that “‘in all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.’” U.S. Const. amend.

VI. The Confrontation Clause does not apply to all out-of-court statements

introduced at a trial; it applies only to hearsay that is “testimonial” in nature.

Sanchez v. State, 354 S.W.3d 476, 485 (Tex. Crim. App. 2011) (citing Crawford v.

Washington, 541 U.S. 36, 51–52, 124 S. Ct. 1354, 1364 (2004)). The

Confrontation Clause prohibits trial courts from admitting testimonial statements

of a witness who is absent from trial unless the witness is unable to testify and the

defendant had a proper opportunity to cross-examine the witness. See id.;

McWilliams v. State, 367 S.W.3d 817, 819 (Tex. App.—Houston [14th Dist.] 2012,

no. pet.). But the Confrontation Clause does not bar the admission of non-

testimonial statements. Sanchez, 354 S.W.3d at 485. “‘An off-hand, overheard

remark might be unreliable evidence and thus a good candidate for exclusion under

hearsay rules, but it bears little resemblance to the . . . abuses the Confrontation

Clause targeted.’” Id. (quoting Crawford, 541 U.S. at 51, 124 S. Ct. at 1364).




                                         13
      “While the exact contours of what is and is not testimonial continue[] to be

defined by courts, it generally may be said that testimonial statements tend to

appear more formal and more similar to trial testimony than non-testimonial

statements.” Sanchez, 354 S.W.3d at 485. The United States Supreme Court has

identified a “core class of ‘testimonial’ statements”:

       ex parte in-court testimony or its functional equivalent “such as
        affidavits, custodial examinations, prior testimony that the defendant was
        unable to cross-examine, or similar pretrial statements that declarants
        would reasonably expect to be used prosecutorially”;

       extrajudicial statements “contained in formalized testimonial materials,
        such as affidavits, depositions, prior testimony, or confessions”; and

       “statements that were made under circumstance which would lead an
        objective witness reasonably to believe that the statement would be
        available for use at a later trial.”

Crawford, 541 U.S. at 51–52, 124 S. Ct. at 1364.

      Typically, documents filed in compliance with the public-records or

business-records exceptions to the hearsay rule are non-testimonial. See Crawford,

541 U.S. at 56, 124 S. Ct. at 1367 (“Most of the hearsay exceptions covered

statements that by their nature were not testimonial—for example, business records

or statements in furtherance of a conspiracy.”); Azeez v. State, 203 S.W.3d 456,

466 (Tex. App.—Houston [14th Dist.] 2006), rev’d on other grounds, 248 S.W.3d

182 (Tex. Crim. App. 2008) (“Generally, business records are non-testimonial.”).

This is because business and public records were “created for the administration of

                                          14
an entity’s affairs and not for the purpose of establishing or proving some fact at

trial.” Bullcoming v. New Mexico, __ U.S. __, __ n.6, 131 S. Ct. 2705, 2714 n.6

(2011) (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S. Ct.

2527, 2539–40 (2009)). But business or public records may be testimonial; for

example, business records are testimonial if they contain a “factual description of

specific observations or events that is akin to testimony,” Segundo v. State, 270

S.W.3d 79, 106–07 (Tex. Crim. App. 2008),4 or if the business entity’s “regularly

conducted business activity is the production of evidence for use at trial,”

Melendez-Diaz, 557 U.S. at 321–24, 129 S. Ct. at 2538.

      In 2009, the U.S. Supreme Court held that certificates signed by state

laboratory analysts, which stated that evidence connected to the defendant was

cocaine, were testimonial hearsay and their admission violated the defendant’s

Sixth Amendment right to confront the analysts who signed the certificates.

Melendez-Diaz, 557 U.S. at 310, 129 S. Ct. at 2532. The Court concluded that the

certificates were “incontrovertibly a ‘solemn declaration or affirmation made for


4
      The Segundo court held that Board of Pardons and Paroles certificates stating that
      defendant “subsequently failed to fulfill the terms and conditions of said release,
      and is therefore not worthy of the trust and confidence placed therein,” had
      “violated the conditions of administrative release,” and was an “administrative
      release violator” were not testimonial. 270 S.W.3d at 106–07 (distinguishing
      holding in Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005) that
      portions of jail records “containing specific incident reports written by corrections
      officers graphically documenting their detailed observations” of defendant’s
      disciplinary offenses were testimonial).

                                           15
the purpose of establishing or proving some fact[,]’” specifically, “that the

substance found in the possession of Melendez–Diaz and his codefendants was, as

the prosecution claimed, cocaine[.]” Id. at 311, 129 S. Ct. at 2532.

      Applying Melendez-Diaz, Texas courts have generally held that an expert

witness who testifies as to his own opinions, drawn from his own research and

analysis, may rely on data supplied by scientific instruments operated by other

scientists or technicians. See Hamilton v. State, 300 S.W.3d 14, 21–22 (Tex.

App.—San Antonio 2009, pet. ref’d) (holding that testifying expert could testify as

to his opinion, “based on data generated by scientific instruments operated by other

scientists” without violating the Confrontation Clause); Paredes v. State, No. 14-

10-00266-CR, 2011 WL 3667839, at *10 (Tex. App.—Houston [14th Dist.] Aug.

23, 2011, pet. filed) (not designated for publication) (holding that witness could

offer expert opinion when she “personally compiled the DNA data supplied by

non-testifying analysts, interpreted it, and performed the comparative analysis” and

stating that “[a]n expert witness who offers her opinion based in part on lab work

performed by another does not violate the Confrontation Clause.”).

      Two years after Melendez-Diaz, the Supreme Court held that the

Confrontation Clause prohibited introduction of a forensic laboratory report

containing a testimonial certification through the in-court testimony of a scientist

who did not sign the certification or perform or observe the test reported in the

                                         16
certification. Bullcoming v. New Mexico, — U.S. —, —, 131 S. Ct. 2705, 2710

(2011). The state supreme court had held that a testifying analyst could rely on

another analyst’s blood alcohol test results because the analyst who performed the

test acted as a “mere scrivener” who “transcrib[ed] results generated by the gas

chromatograph machine.” Id. at —, 131 S. Ct. at 2712, 2715. The Supreme Court

disagreed, stating that the other analyst did more than report a machine-generated

number—he certified that he received the defendant’s blood sample with the seal

unbroken, checked to make sure the report number and sample number

corresponded, and performed the blood alcohol test according to protocol. Id. at

2714. These representations, the Court concluded, “relat[ed] to past events and

human actions not revealed in raw, machine-produced data,” and, as such, were

subject to the right of confrontation. Id.

      Most recently, the Supreme Court addressed the admission of underlying

DNA test results performed by a non-testifying witness. Williams v. Illinois, —

U.S. —,132 S. Ct. 2221 (2012). Observing that “[m]odern rules of evidence

continue to permit experts to express opinions based on facts about which they lack

personal knowledge,” the Court held that there was no Confrontation Clause

violation when an expert witness relied on a DNA profile procured from a third-

party laboratory, Cellmark, which had performed the DNA testing before a suspect

was identified in the criminal investigation. Id. at —, 132 S. Ct. at 2227–28, 2234.

                                             17
The expert testified as to the following: Cellmark was an accredited lab; the Illinois

state police lab occasionally sent forensic samples to Cellmark for DNA testing;

the police lab sent vaginal swabs taken from the victim to Cellmark and later

received those swabs back from Cellmark; and the Cellmark DNA profile matched

a profile produced by the police lab from a sample of the defendant’s blood.

Because the witness had personal knowledge of each of these matters, the Court

held that her testimony did not violate the Confrontation Clause. Id. at 2227–29.

The Court further held that, had Cellmark’s DNA report been introduced into

evidence, it likewise would not have violated the Confrontation Clause because it

was not created for the primary purpose of obtaining evidence to use against the

defendant; rather, it was created “for the purpose of finding a rapist who was on

the loose.” Id. at —, 132 S. Ct. at 2228.

      In light of this precedent, we conclude that LeJeune’s testimony regarding

the results he found in his personal research based on the serial number acquired

by a technician did not violate Infante’s Sixth Amendment right of confrontation

for three reasons. First, the serial number is exactly the kind of “raw, machine-

produced data” that the Supreme Court said was not at issue in Bullcoming, —

U.S. at —, 131 S. Ct. at 2714. LeJeune testified that the radio shop technician

obtained the serial number by plugging his programming cables up to the radio,

reading the serial number produced, and reporting that number to LeJeune. The

                                            18
technician’s out-of-court statement is only the recording of the serial number

produced by the radio—he performed no analysis, made no representations as to

his own personal observations or opinion, and did not attest to the accuracy of the

number produced by the radio or the means by which it was obtained.

      Second, the record does not establish that the serial number was obtained for

the primary purpose of generating evidence to use against Infante. See Williams, —

U.S. at —, 132 S. Ct. at 2243 (holding report that was “not prepared for the

primary purpose of accusing a targeted individual” did not invoke Confrontation

Clause). LeJeune testified that he asked the technician to pull the radio’s serial

number after Corporal Quirin brought LeJeune the radio and asked Lejeune if he

could tell him anything about the radio. Additionally, the radio shop’s records

indicated that the radio had been flagged when it went missing in 2008 such that if

a radio with that serial and tracking number came into the shop, it was to be

reported to various officials. Moreover, in light of the bench technician’s isolated

task of reading and reporting the serial number, “it is likely that the sole purpose of

[the] technician [was] simply to perform his or her task in accordance with

accepted procedures.” Id. at 2244. The technician likely had “no idea” what the

consequences of his report would be, and the data LeJeune uncovered from the

shop’s records using the serial number could have tended to exonerate, rather than

incriminate, Infante. See Id. (noting that DNA technicians “often have no idea what

                                          19
the consequences of their work will be” and “have no way of knowing whether

[the DNA evidence] will turn out to be incriminating or exonerating—or both.”).

      Finally, the lab technician’s identification of the radio’s serial number is

similar to the chain-of-custody link discussed in Melendez–Diaz:

      [W]e do not hold, and it is not the case, that anyone whose testimony
      may be relevant in establishing the chain of custody, authenticity of
      the sample, or accuracy of the testing device, must appear in person as
      part of the prosecution’s case. While the dissent is correct that “it is
      the obligation of the prosecution to establish the chain of custody,”
      . . . this does not mean that everyone who laid hands on the evidence
      must be called. As stated in the dissent’s own quotation . . . “gaps in
      the chain [of custody] normally go to the weight of the evidence rather
      than its admissibility.” . . . Additionally, documents prepared in the
      regular course of equipment maintenance may well qualify as
      nontestimonial records.

Melendez–Diaz, — U.S. at —, 129 S. Ct. at 2532 n.1 (citations omitted). The role

of the radio’s serial number here was to connect the data collected by LeJeune

from the radio shop’s records to the radio in evidence at trial, which LeJeune

testified is the same radio presented to him, from which he asked the technician to

pull the serial number. LeJeune testified from personal knowledge to establish that

the radio in evidence was the same radio the technician used to obtain the serial

number. The possibility that the technician could have misread the serial number or

that the machine could have malfunctioned in producing the serial number goes to

the weight of LeJeune’s testimony, not its admissibility. See id.; see also Evanoff v.

State, No. 11-09-00317-CR, 2011 WL 1431520, at *11 (Tex. App.—Eastland

                                         20
April 14, 2011, pet. ref’d) (mem. op., not designated for publication) (holding that

laboratory submission form linking substance seized and substance tested were not

testimonial under Confrontation Clause but, instead, “merely went to establishing

chain of custody”).

      Under these circumstances, we hold that the trial court’s admission of the

radio’s serial number did not violate Infante’s Sixth Amendment right of

confrontation.

      We overrule Infante’s second issue.

                         Accomplice-Witness Instruction

      In her third issue, Infante asserts that the trial court erred in refusing her

request to submit an accomplice-witness instruction in the jury charge with respect

to Billy Cable, Infante’s supervisor at her second job, who had possession of the

radio at the time of his unrelated arrest and who told police that he purchased the

radio from Infante.

A.    Standard of review

      If the evidence at trial raises a question of fact as to whether a witness is an

accomplice, the trial court must instruct the jury to decide whether the witness is an

accomplice; if the evidence conclusively establishes that a witness is an

accomplice, the trial court must instruct the jury that the witness is an accomplice

as a matter of law. Druery v. State, 225 S.W.3d 491, 498–99 (Tex. Crim. App.

                                         21
2007). We review a trial court’s determination of whether the evidence supports an

accomplice-witness instruction under an abuse of discretion standard. See Paredes

v. State, 129 S.W.3d 530, 536–37 (Tex. Crim. App. 2004).

B.    Accomplice–witness instruction

      Under article 38.14 of the Code of Criminal Procedure, a criminal conviction

may not be based on the testimony of an accomplice-witness unless the testimony

is “corroborated by other evidence tending to connect the defendant with the

offense committed.” TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2011). A

witness is an accomplice only if he participates in the crime with the defendant,

taking “an affirmative act . . . to assist in the commission of the [crime]” before,

during, or after the commission of the crime, with the required culpable mental

state for the crime. Druery, 225 S.W.3d at 498–99; see also Paredes, 129 S.W.3d

at 536. Mere presence at the scene of the crime does not render a witness an

accomplice. Druery, 225 S.W.3d at 498; Cocke v. State, 201 S.W.3d 744, 748

(Tex. Crim. App. 2006). Nor is a witness an accomplice merely because he knew

of the crime and failed to disclose it or even concealed it. Druery, 225 S.W.3d at

498. In short, “[i]f the witness cannot be prosecuted for the same offense with

which the defendant is charged, or a lesser-included offense, the witness is not an

accomplice witness as a matter of law.” Delacerda v. State, No. 01–09–00972–CR,

2011 WL 2931189, at *22 (Tex. App.—Houston [1st Dist.] July 21, 2011, no pet.).

                                        22
      Infante was not entitled to an accomplice-witness instruction with respect to

Cable because there was no evidence that Cable took an affirmative act to assist

Infante in the commission of theft of the radio. Druery, 225 S.W.3d at 498–99; see

also Paredes, 129 S.W.3d at 536. While there was evidence that Cable purchased

the stolen radio from Infante, merely possessing or purchasing stolen property does

not, alone, establish affirmative assistance in the commission of the theft. See

Cocke, 201 S.W.3d at 748 (holding that defendant was not entitled to accomplice-

witness instruction with respect to two witnesses who purchased or received stolen

property from defendant when there was no evidence they actively participated or

assisted in burglary or had required mental state); see also Charles v. State, No. 14-

01-00802-CR, 2002 WL 1733672, at *2–3 (Tex. App.—Houston [14th Dist.] July

25, 2002, pet. ref’d) (not designated for publication) (holding that trial court did

not err in failing to submit accomplice-witness instruction with respect to witness

who had possession of stolen items and noting that “[u]nder the current Penal

Code, a witness whose participation in a crime occurred only after the commission

of the offense, namely a person who would be considered an accessory after the

fact (a receiver of stolen goods) under the prior law, is no longer an accomplice

witness.”) (citing Easter v. State, 536 S.W.2d 223, 228 (Tex. Crim. App. 1976);

Worthen v. State, 59 S.W.3d 817, 820 (Tex. App.—Austin 2001, no pet.)).




                                         23
      Moreover, Cable testified that he did not know the radio was stolen, and

Infante identifies no controverting evidence tending to establish that Cable had the

necessary mental state to support a theft conviction. See Cocke, 201 S.W.3d at 748

(“This Court has previously held that proof that a witness purchased stolen

property will not transform his testimony into that of an accomplice when there is

no evidence of facts that would put the witness on notice that the property was

stolen.”) (citing Peaden v. State, 491 S.W.2d 136, 139 (Tex. Crim. App.1973)).

Under these circumstances, the trial court did not abuse its discretion in refusing to

submit an accomplice witness instruction with respect to Cable.

      We overrule Infante’s third issue.

                                    Conclusion

      We hold that the evidence was sufficient to prove the “value” element of

Infante’s theft, that the trial court did not commit reversible error in admitting the

recovered radio’s serial number into evidence, and that the trial court did not abuse

its discretion in declining to submit an accomplice witness instruction with regard

to Billy Cable. We therefore affirm the trial court’s judgment.



                                                Harvey Brown
                                                Justice

Panel consists of Justices Keyes, Massengale and Brown.

Publish. TEX. R. APP. P. 47.2(b).
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