Affirm as Modified and Opinion Filed July 8, 2014.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-00086-CR

                               DONALD RAY MAYS, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 3
                                   Dallas County, Texas
                            Trial Court Cause No. F12-55902-J

                                           OPINION
                             Before Justices Lang, Myers, and Brown
                                     Opinion by Justice Lang
       Donald Ray Mays appeals the trial court’s judgment convicting him of theft, enhanced by

two prior theft convictions. TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(D) (West Supp. 2013).

The jury found Mays guilty. Also, the jury found the two prior state jail felony punishment

enhancements true, and assessed his punishment at six years of imprisonment. TEX. PENAL

CODE ANN. § 12.425(a) (West Supp. 2013). Mays raises four issues on appeal, arguing: (1) the

trial court erred when it admitted State’s Exhibit No. 2, a business record, over his objection

because the State failed to establish the proper predicate; (2) the trial court improperly

commented on the weight of the evidence when it stated the value of the goods was not an issue

in this case; (3) there is insufficient evidence in the record to support the trial court’s order that

he pay $239 in court costs; and (4) the judgment should be modified to correctly reflect that he

pleaded not true to the punishment enhancements.
       We conclude any error in the admission of State’s Exhibit No. 2 was rendered harmless

when substantially the same evidence was admitted elsewhere without objection. Also, we

conclude Mays failed to preserve for appellate review his issue that the trial court improperly

commented on the weight of the evidence when it stated the value of the goods was not an issue

in this case. Further, Mays’s complaint that there is insufficient evidence of the court costs is

moot. However, we conclude the trial court’s judgment should be modified to reflect that Mays

pleaded not true to the first punishment enhancement paragraph. The trial court’s judgment is

affirmed as modified.

                   I. FACTUAL AND PROCEDURAL BACKGROUND

       Jessica Chavez, who works for Wal-Mart loss prevention, observed Mays concealing

merchandise in his pants pockets. After Mays passed all points of sale without attempting to pay

for the items, Chavez and two officers apprehended him. One of the officers was Charles Steele,

an off-duty sergeant for the City of Dallas’s Marshal’s Office.          Chavez took the stolen

merchandise to a supervisor who determined the total value of the items to be $123.15.

       Mays was indicted for theft, enhanced to a state jail felony by two prior theft convictions.

TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(D). The State also filed a special plea of enhancement

paragraphs alleging two state jail felonies for the purpose of enhancing his offense to a third

degree felony. TEX. PENAL CODE ANN. § 12.425(a). During the trial, the State introduced

evidence of the value of the stolen goods through a business record and Mays objected. The trial

court overruled the objection, stating “the value is not at issue with this particular case.” The

jury found Mays guilty, the two prior state jail felony punishment enhancements true, and

assessed his punishment at six years of confinement.




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                      II. ADMISSIBILITY OF BUSINESS RECORDS

       In issue one, Mays argues the trial court erred when it admitted State’s Exhibit No. 2, a

business record, over his objection because the State failed to establish the proper predicate.

Specifically, he argues there was no showing that Chavez was the custodian of the record or that

the person who actually made the record was not able to testify. The State responds that any

error in the admission of the business record was cured when Steele testified to the same

evidence.

                                     A. Standard of Review

       An appellate court reviews the trial court’s admission of evidence for an abuse of

discretion. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the trial

court’s ruling is within the zone of reasonable disagreement, there is no abuse of discretion. De

La Paz, 279 S.W.3d at 343–44. Erroneously admitted evidence “will not result in reversal when

other such evidence was received without objection, either before or after the complained-of

ruling.” Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010) (quoting Leday v. State,

983 S.W.2d 713, 718 (Tex. Crim. App. 1998)). In other words, error in the admission of

evidence may be rendered harmless when “substantially the same evidence” is admitted

elsewhere without objection. Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991); see

also Estrada v. State, 313 S.W.3d 274, 302 n. 29 (Tex. Crim. App. 2010) (noting any error was

harmless in light of “very similar” evidence admitted without objection).

                                       B. Applicable Law

       The hearsay doctrine, codified in Texas Rules of Evidence 801 and 802, is designed to

exclude out-of-court statements offered for the truth of the matter asserted that pose any of the

four “hearsay dangers” of faulty perception, faulty memory, accidental miscommunication, or

insincerity. Fischer v, State, 252 S.W.3d 375, 378 (Tex. Crim. App. 2008). However, Texas


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Rule of Evidence 803(6) provides that “records of regularly conducted activity” or business

records are not excluded by the hearsay rule. TEX. R. EVID. 803(6); Halprin v. State, 170

S.W.3d 111, 114 n.3 (Tex. Crim. App. 2005); Garcia v. State, 126 S.W.3d 921, 926 (Tex. Crim.

App. 2004). Rule 803(6) defines “records of regularly conducted business” as:

       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); Halprin, 170 S.W.3d at 114 n.3; Garcia, 126 S.W.3d at 926. The

business records exception calls for the laying of a predicate as a condition precedent to

admission by requiring that a custodian or other qualified witness testify that the documents,

made at or near the time of the event by a person with knowledge, were kept in the course of a

regularly conducted business activity and that it was the regular practice of that business activity

to make the report. TEX. R. EVID. 803(6); see Cowan v. State, 840 S.W.2d 435, 437 n.7 (Tex.

Crim. App. 1992).

                             C. Application of the Law to the Facts

       State’s Exhibit No. 2 was a receipt created by Wal-Mart to calculate the value of the

stolen goods and the State sought to have it admitted as a business record. The receipt shows the

value of the stolen goods was $123.15. Mays objected to the admission of this exhibit on the

basis that the State had not established a proper predicate because there was no showing that

Chavez was the custodian of the record and there was no showing that the person who made the

record was not able to testify. The trial court overruled Mays’s objection. However, the record

shows that Steele subsequently testified, without objection, that the value of the stolen property

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was $123.15. Accordingly, we conclude any error in the admission of State’s Exhibit No. 2 was

rendered harmless when substantially the same evidence was admitted elsewhere without

objection. See Coble, 330 S.W.3d at 282; Mayes, 816 S.W.2d at 88.

       Issue one is decided against Mays.

                                 III. VALUE OF THE GOODS

       In issue two, Mays argues the trial court improperly commented on the weight of the

evidence when it stated the value of the goods was not an issue in this case. The State responds

that the trial court’s comment was not error, and even if it was, there was no harm.

       The record shows that Mays objected to the admission of State’s Exhibit No. 2, a

business record, and the trial court overruled the objection as follows:

       Defense Counsel:       Judge, we would object. Number one, there’s not a proper
                              predicate. There’s no showing that this lady is the custodian of
                              this matter, nor is there any showing that that person who actually
                              rang this up would not be able to come in here and tell this jury
                              what the situation is.

                              Based upon both of those, we would object to this being allowed
                              into evidence at this time.

       Trial Court:           Your objection is overruled since the value is not at issue with this
                              particular case.

       Prosecutor:            Thank you, Judge. Publish to the jury?

       Trial Court:           Yes.

Mays did not object to the trial court’s comment.

       Ordinarily, a complaint regarding an improper judicial comment must be preserved for

appellate review. Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013); Jasper v. State, 61

S.W.3d 413, 420–21 (Tex. Crim. App. 2001); see also TEX. R. APP. P. 33.1(a). However, an

exception to the general rule exists in cases where the trial court’s comments and conduct

amount to fundamental error. See Unkart, 400 S.W.3d at 99; Blue v. State, 41 S.W.3d 129, 131


                                                –5–
(Tex. Crim. App. 2000) (plurality op.). Nevertheless, when an instruction to disregard could

cure any residual harm from a judicial comment, a defendant forfeits his complaint for review by

failing to object and request an instruction. Unkart, 400 S.W.3d at 99.

       Mays does not argue or characterize the trial court’s comment in this case as fundamental

error alleviating his need to object and preserve the alleged error for appellate review. Mays was

indicted for theft, enhanced by two prior theft convictions. See TEX. PENAL CODE ANN. §

31.03(a), (e)(4)(D). “A person commits [theft] if he unlawfully appropriates property with the

intent to deprive the owner of property.” TEX. PENAL CODE ANN. § 31.03(a). Theft is “a state

jail felony if the value of the property stolen is less than $1,500 and the defendant has been

previously convicted two or more times of any grade of theft.” TEX. PENAL CODE ANN. §

31.03(e)(4)(D). The evidence in the record shows the stolen property was valued at $123.15.

Based on our review of the record, we conclude that the complained-of comment by the trial

court does not rise to the level of fundamental error. Accordingly, we conclude Mays failed to

preserve this issue for appellate review. See TEX. R. APP. P. 33.1(a); Unkart, 400 S.W.3d at 99.

       Issue two is decided against Mays.

                                      IV. COURT COSTS

       In issue three, Mays argues there is insufficient evidence in the record to support the trial

court’s order that he pay $239 in court costs. Mays argues that because there is no written bill of

costs, the judgment should be modified to delete the costs.          The State responds that the

supplemental clerk’s record contains a bill of costs supporting the assessment of costs, so Mays’s

issue is without merit.

       The trial court’s judgment assessed court costs of $239 against Mays. A supplemental

clerk’s record containing a certified bill of costs associated with this case, showing costs in the

amount of $264, was filed in this appeal. Because the record now contains a bill of costs


                                               –6–
supporting the assessment of costs in the trial court’s judgment, Mays’s fourth issue on appeal,

complaining the evidence of costs is insufficient, is moot. Franklin v. State, 402 S.W.3d 894,

895 (Tex. App.—Dallas 2013, no pet.).

                           V. MODIFICATION OF JUDGMENT

       In issue four, Mays argues the judgment should be modified to correctly reflect that he

pleaded not true to both of the punishment enhancements. The State agrees with Mays that the

judgment should be modified to correctly reflect that he pleaded not true to the first punishment

enhancement paragraph.

       The trial court’s judgment states that Mays pleaded true to the first punishment

enhancement paragraph and not true to the second punishment enhancement paragraph.

However, the record shows that Mays pleaded not true to both punishment enhancement

paragraphs. An appellate court has the authority to modify an incorrect judgment to make the

record speak the truth when it has the necessary information to do so. See TEX. R. APP. P.

43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (en banc); Asberry v.

State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we conclude

the trial court’s judgment should be modified to reflect that Mays pleaded not true to the first

punishment enhancement paragraph.

       Issue four is decided in favor of Mays.

                                     VI. CONCLUSION

       Any error in the admission of State’s Exhibit No. 2 was rendered harmless when

substantially the same evidence was admitted elsewhere without objection. Also, Mays failed to

preserve for appellate review his issue that the trial court improperly commented on the weight

of the evidence when it stated the value of the goods was not an issue in this case. Further,

Mays’s complaint that there is insufficient evidence of court costs is moot. However, the trial


                                                 –7–
court’s judgment should be modified to reflect that Mays pleaded not true to the first punishment

enhancement paragraph.

       The trial court’s judgment is modified to reflect that Mays pleaded not true to the first

punishment enhancement paragraph. The trial court’s judgment is affirmed as modified.




                                                    /Douglas S. Lang/
                                                    DOUGLAS S. LANG
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47

130086F.U05




                                              –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

DONALD RAY MAYS, Appellant                           On Appeal from the Criminal District Court
                                                     No. 3, Dallas County, Texas
No. 05-13-00086-CR         V.                        Trial Court Cause No. F12-55902-J.
                                                     Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                         Myers and Brown participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       to show that appellant Donald Ray Mays pleaded not true to the first punishment
       enhancement paragraph

As MODIFIED, the trial court’s judgment is AFFIRMED.


Judgment entered this 8th day of July, 2014.




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