


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-09-00127-CV
 
In
the Matter of J.W., a Juvenile,
                                                                                    
 
 

From the County Court
at Law No. 2
Johnson County, Texas
Trial Court No. J04774
 

MEMORANDUM Opinion

 
In a bench trial, J.W., a juvenile, was
found to have engaged in delinquent conduct and was placed on eight months of
community supervision.  Raising two issues, J.W. appeals.
The adjudication petition alleged that
J.W. committed criminal mischief ($1,500 or more but less than $20,000) by
scratching K.H.’s car.  The trial judge found that J.W. engaged in delinquent
conduct by committing a lesser offense of criminal mischief ($500 or more but
less than $1,500) and ordered J.W. to pay restitution.  J.W.’s first issue
complains of the admission of hearsay, and her second issue asserts that the
evidence is legally insufficient to support the delinquency finding, which
amounts to a violation of due process.
The evidence in this case revolves
around several female high school students.  On or about the evening of
November 25, 2007, K.H. drove her car to Joshua High School to attend a
basketball game.  Her car had no damage at that time.  K.H. parked her car in
the lot behind the gym and walked around the building to go in the front
entrance.  There K.H. encountered J.W., who was with a female unknown to K.H. 
J.W. yelled at K.H., using vulgar language.  K.H. proceeded into the gym, left the
game at halftime, and drove home.
At school the next day, a friend asked
K.H. what had happened to K.H.’s car, and K.H. went to observe that it had
scratches.  K.H. reported the damage to David Hoschar, the School Resource
Officer, who conducted an investigation.  Officer Hoschar questioned J.W., who
admitted to being at the school on the night K.H.’s car was damaged.  Officer
Hoschar learned that the person with J.W. that night was G.A.  After Officer
Hoschar questioned G.A., she wrote and signed a witness statement.
G.A. was called as a witness by the
State.  She testified that she had recently been in an auto accident, had
suffered a head injury, and had lost some memory.  She did not remember the
events of November 25, 2007.  G.A. was shown the witness statement; she said
that she did not recognize the document but did recognize her signature.  She
then read the statement to herself and said she did not remember the events
described in it because of her memory loss.  On voir dire, G.A. stated that she
did not remember where she was when she signed it or signing the document.  Nor
did she remember if she wrote it or someone else wrote it.  She also reiterated
that she had no independent recollection of the events concerning the car
scratching other than from people talking about it leading up to the trial.
The State sought to read G.A.’s
statement into evidence under Rule of Evidence 803(5) over J.W.’s objections,
which the trial court overruled.  The State was allowed to read G.A.’s
statement, as follows:
On November 5th, 2007, while attending a
basketball game, me and [J.W.] were walking out of the game and [K.H.] was
walking in and me and [J.W.] walked a little bit further and J.W. started
running towards the right in the back parking lot and I sat there waiting for
my dad to get there and then like two minutes later [J.W.] started running back
and I asked her why she was running and she said that she keyed her ([K.H.’s])
car and then we left.
 
            Officer Hoschar testified
that he watched G.A. write the statement.  After she wrote it, he asked her if
everything she had written was true, to which she replied affirmatively.  No
hearsay objection was made to that testimony.  Officer Hoschar then also signed
the statement, along with noting the date and time.
J.W. complains in her first issue that
the trial court erred in allowing the statement to be read into evidence.  We
review a trial court’s decision to admit or exclude evidence for an abuse of
discretion.  See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005).
Rule 803(5) provides the following
exception to the hearsay rule, even though the declarant is available as a
witness:
(5) Recorded Recollection.  A memorandum
or record concerning a matter about which a witness once had personal knowledge
but now has insufficient recollection to enable the witness to testify fully
and accurately, shown to have been made or adopted by the witness when the matter
was fresh in the witness’ memory and to reflect that knowledge correctly,
unless the circumstances of preparation cast doubt on the document’s
trustworthiness.  If admitted, the memorandum or record may be read into
evidence but may not itself be received as an exhibit unless offered by an
adverse party.
 
Tex. R. Evid.
803(5).
 




            The four predicate elements for the use
of a recorded recollection are:
 
(1) the witness must have had firsthand
knowledge of the event, (2) the written statement must be an original
memorandum made at or near the time of the event while the witness had a clear
and accurate memory of it, (3) the witness must lack a present recollection of
the event, and (4) the witness must vouch for the accuracy of the written
memorandum.   2 J. Strong, et al., McCormick On Evidence §§ 279-283 (4th
ed. 1992).
 
Johnson v. State, 967 S.W.2d 410, 416 (Tex. Crim. App.
1996); see Brown v. State, --- S.W.3d ---, ---, 2009 WL 1153412, at *5
(Tex. App.—Dallas April 30, 2009, no pet. h.).  J.W. specifically asserts that
the State did not satisfy the first and fourth elements.  We disagree.
            On the first element, J.W.
contends that the event that G.A. must have had firsthand knowledge of was the
scratching of the car, but we agree with the State that the proper event at
issue in the statement was J.W.’s verbal statement that she had “keyed” K.H.’s
car.  The first predicate element was satisfied.
In particular, to meet the fourth
element, the witness may testify that she presently remembers recording the fact
correctly or remembers recognizing the writing as accurate when she read it at
an earlier time.  Id. at § 283.  But if her present memory is less
effective, it is sufficient if the witness testifies that she knows the
memorandum is correct because of a habit or practice to record matters
accurately or to check them for accuracy.  Ibid.  At the extreme, it is
even sufficient if the individual testifies to recognizing her signature on the
statement and believes the statement is correct because she would not have
signed it if she had not believed it true at the time.  Ibid; 3 Wigmore,
Evidence § 747 (Chadbourn rev. 1970).  However, the witness must
acknowledge at trial the accuracy of the statement.  2 J. Strong, et al., McCormick
On Evidence § 283 (4th ed. 1992).
 
Johnson, 967 S.W.2d at 416.
 
            To satisfy the fourth
element, the State relies on Officer Hoschar’s unobjected-to hearsay testimony
that G.A. told him that her statement was true at the time she wrote it.  The
fourth element’s purpose is to have evidence before the trial court that the
statement was accurate when made.  Ideally, this evidence would come from the
declarant, but under the circumstances of this case, we cannot say that the
trial court abused its discretion in admitting the statement based on Officer
Hoschar’s unobjected-to hearsay testimony that G.A. told him that her statement
was true.  See Wiegert v. State, 948 S.W.2d 54, 59 (Tex. App.—Fort Worth
1997, no pet.) (holding that where declarant did not specifically testify
statement was accurate when made, absent showing statement was inaccurate or
circumstances casting doubt on document’s trustworthiness, trial court did not
abuse its discretion in allowing hearsay under recorded recollection exception);
see also Tex. R. Evid. 802
(hearsay not objected to has probative value); Walker v. State, 291
S.W.3d 114, 119 n.5 (Tex. App.—Texarkana 2009, no pet.).  We overrule J.W.’s
first issue.
J.W.’s second issue complains about the
legal sufficiency of the evidence.  In evaluating the legal sufficiency of the
evidence in a juvenile delinquency appeal, we view all the evidence in the
light most favorable to the verdict and ask whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.  See In re K.B., 143 S.W.3d 194, 199 (Tex. App.—Waco 2004, no
pet.).  “This ‘familiar standard gives full play to the responsibility of the
trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate
facts.’”  Klein v. State, 273 S.W.3d 297, 302 (Tex. Crim. App. 2008)
(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979)).
Officer Hoschar said that he interviewed
J.W. about the car damage, and J.W. admitted that she was at the basketball
game with G.A. on the night in question.  J.W. told him that she was “tired of
hearing” about K.H.’s car and that she was not responsible for the damage.
In addition to her testimony that J.W.
yelled at her and called her vulgar names when K.H. was entering the game and
J.W. was leaving, K.H. testified that she received text messages from a phone
number that she recognized as J.W.’s phone number and that those messages
contained threats to fight K.H. and more name calling.  K.H. did not know who
actually sent the messages, and the trial judge, in allowing K.H. to testify
about the content of the text messages, said he would disregard who the source
of them may have been.  K.H. also testified about another text message from
J.W.’s phone number in which the person stated that she admitted to “keying”
K.H.’s car only because she was in trouble and that the person who actually
“keyed” the car was the friend who was with J.W. at the game.
K.H. also testified that she read on what
she believed to be J.W.’s MySpace page—based on J.W.’s photo and her MySpace
friends—a conversation that appeared to K.H. to be between J.W. and another
girl in which J.W. stated that she had “keyed” K.H.’s car.  K.H. admitted that she
had no personal knowledge that J.W. typed that admission on a computer, and in
allowing K.H. to testify about what she read on MySpace, the trial judge said that
he would “consider the credibility of the source”—MySpace.
            Viewing all the evidence in
the light most favorable to the verdict, we hold that a rational trier of fact
could have found beyond a reasonable doubt that J.W. engaged in the alleged
delinquent conduct.  We overrule J.W.’s second issue and affirm the trial
court’s order of adjudication.
 
 
REX D. DAVIS
Justice
 
Before
Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion
delivered and filed December 30, 2009
[CV06]

