                                NO. 12-10-00277-CR

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

BEN LEE JOHNSON, JR.                            §            APPEAL FROM THE EIGHTH
APPELLANT

V.                                              §            JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §            RAINS COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Ben Lee Johnson, Jr., appeals his conviction for theft. In one issue, Appellant argues that
the trial court erred in allowing the State to offer two documents into evidence. We affirm.


                                         BACKGROUND
       Appellant was indicted for stealing cattle from a livestock barn. The essential facts were
not in dispute. Appellant purchased cattle on November 3 and November 6, 2007, from Emory
Livestock (Emory), a cattle auction business. On November 7, 2007, Appellant wrote a check to
Emory for $35,879.83. The check was to cover the purchases he had made earlier that week.
Emory attempted to cash the check on several occasions, but the bank did not honor the check
because Appellant’s account was overdrawn.
       After attempting to collect on the check on its own, Emory turned to the district attorney to
attempt to get payment. A grand jury indicted Appellant for the felony offense of theft in June
2008. Appellant made two payments to Emory, one in the amount of $4,876.45 and one in the
amount of $2,500.00. Additionally, although the evidence is not clear on this issue, Emory was
able to recoup some of its losses by holding back payment from transactions in which Appellant
was the seller. The case proceeded to trial in May 2010. Appellant pleaded not guilty.

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       At his trial, the State offered a complaint and a default judgment from a United States
Department of Agriculture administrative proceeding. That proceeding was against Appellant.
In the complaint, the Department alleged that he did not make payment on six livestock
transactions. Appellant apparently did not answer or appear in response to the complaint, and a
default judgment was entered against him. In the default judgment, the administrative law judge
found that he had issued insufficient funds checks for six transactions totaling $127,674.66 and
suspended him from operations subject to the Packers and Stockyards Act for six years.
       Appellant objected to the documents on the grounds that they were hearsay.               The
complaint and judgment were not certified. The State argued that they were admissible as
business records, even though the sponsoring witness, a local agent with the Department of
Agriculture, did not maintain the documents in his office and was not a custodian of these specific
records. The trial court allowed the documents over Appellant’s objection. The jury found
Appellant guilty as charged. The judge assessed a sentence of imprisonment for ten years. This
appeal followed.


                                         ADMISSION OF RECORDS
       In one issue, Appellant argues that the trial court erred in overruling his hearsay objection
to the admission of a complaint and a default judgment from an administrative proceeding.
Applicable Law
       We review a trial court’s decision to admit evidence over a hearsay objection for an abuse
of discretion. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Willover v. State,
70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We will not disturb the evidentiary ruling of the
trial court unless it falls outside the zone of reasonable disagreement. See Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). The rules of evidence forbid hearsay
statements. See TEX. R. EVID. 801(d). By rule, hearsay is “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Id.
       Public records, subject to several exceptions, are admissible as an exception to the hearsay
rule. See TEX. R. EVID. 803(8). Domestic public documents are self-authenticating if they are
under seal. See TEX. R. EVID. 902(1). Copies of certified public records are self-authenticating
if they are certified correct by the custodian or person authorized to make a certification. See

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TEX. R. EVID. 902(4).
        Records of regularly conducted activity are admissible as an exception to the hearsay rule.
See TEX. R. EVID. 803(6). Often called a business records exception, these kinds of records are
admissible if they meet four foundational requirements: (1) the records were made and kept in the
course of a regularly conducted business activity, (2) it was the regular practice of the business
activity to make the records, (3) the records were made at or near the time of the event that they
record, and (4) the records were made by a person with knowledge who was acting in the regular
course of business. See id.; Powell v. Vavro, McDonald, & Assocs., 136 S.W.3d 762, 765 (Tex.
App.–Dallas 2004, no pet.).
Analysis
        The documents offered by the State were court records. However, the documents did not
bear a seal and were not certified. The State does not argue that they are admissible as public
records. Instead, the State argued in the trial court, and argues on appeal, that the documents were
admissible as records of regularly recorded activity. Appellant argued at trial that the documents
were irrelevant and that they were hearsay because the State had not laid a proper foundation for
their admission. Appellant does not argue that the documents contain additional hearsay1 and did
not renew his relevancy argument on appeal.
        The sponsoring witness for the documents was Philip Warren, a resident agent with the
USDA Packers and Stockyards Program. He testified that he was a custodian of records for that
program. He also testified that the exhibits were true and accurate copies of the originals. The
originals are kept in Washington D.C. He testified further that they appear to have been made by
someone who would “have had knowledge of that.” However, Warren also testified that he was
not a custodian of records in Washington D.C., he had no personal knowledge of the authenticity
of the records, he did not maintain these particular records, and these records were not maintained
in his office. The State sought to clarify his position with respect to the records with the following
questions:

        Q:       And again, Mr. Warren, do you have any records in your office?

        A:       Yes, I do.

        Q:       And those records are records of persons like the Defendant here; correct?

        1
           See, e.g., Crane v. State, 786 S.W.2d 338, 353-54 n.5 (Tex. Crim. App. 1990) (otherwise admissible
business record may contain inadmissible hearsay).

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       A:      Yes, sir.

       Q:      And they are records that are ordinarily kept in the normal course of the Packers and
               Stockyards Program; right?

       A:      Yes, sir.

       Q:      So, in fact, you really are a custodian of records if you have records in your possession at
               your office; correct?

       A:      Yes, I am.

       Q:      And I’m not asking you did you have this record in your office. I’m just asking you, are
               you actually a custodian of records for the Packers and Stockyards Program?

       A:      Yes, sir.



       Appellant renewed his objection, stating that Warren could not testify as to the
“authenticity of this particular record.” The State asked further questions, including asking if it
“appear[ed] to be a document that was prepared by someone within the USDA.” The State also
asked if the records bore a stamp and if the same cause number was on both documents. Warren
answered in the affirmative to each question.
       Appellant’s objection was a proper one. While Warren was custodian of some records, he
was not, by his own admission, a custodian of this record. He did not testify that it was made at
the time or near the time of the event it recorded. Importantly, there was no evidence as to where
this particular document originated, and Warren testified that he had no personal knowledge as to
its authenticity. Warren testified that it was like other documents, but he was unable to testify that
he maintained these particular documents.
       Rule 803(6) does not require that the person authenticating the record be either the creator
of the record or have personal knowledge of the information recorded therein. See Desselles v.
State, 934 S.W.2d 874, 876 (Tex. App.–Waco 1996, no pet.); Brooks v. State, 901 S.W.2d 742,
746 (Tex. App.–Fort Worth 1995, pet. ref'd). Rather, the testifying witness need only have
knowledge of how the record was prepared. Desselles, 934 S.W.2d at 876. Warren likely did
have knowledge as to how the records were prepared. In fact, he later testified that he had served
the order on Appellant on two occasions. But before admission of the document, Warren never
testified as to how these specific records were prepared or where they were maintained. He
disclaimed any personal knowledge of the authenticity of the records. His testimony, in sum, was

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that he did not maintain the documents, the documents looked like official documents, the
complaint appeared to have been signed by his supervisor, and the two documents bore the same
cause number. This does not establish that these particular records were made in the ordinary
course of business, that they were made at or near the time of the event they record, and that they
were made by a person with knowledge who was acting in the regular course of business. See
TEX. R. EVID. 803(6). Finally, and perhaps most importantly, Warren could not vouch for the
authenticity of the documents. Because the foundational requirements were not met to establish
that these documents were records of regularly conducted activity, the trial court erred in allowing
them into evidence.
       Error in the admission of evidence is nonconstitutional error. See Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). Nonconstitutional error that does not affect the
substantial rights of the defendant must be disregarded. See TEX. R. APP. P. 44.2(b). Therefore,
error in the admission of hearsay evidence does not warrant reversal unless it had a substantial and
injurious effect or influence in determining the jury’s verdict. See King v. State, 953 S.W.2d 266,
271 (Tex. Crim. App. 1997).
       After considering all of the evidence, we hold that this error did not have a substantial or
injurious effect or influence on the jury’s verdict. A lawyer would know that a complaint in a
civil proceeding proves no facts, other than the fact that it was filed. And without more
information about how a default judgment is rendered in the U.S. Department of Agriculture
administrative law proceedings, a lawyer would know that the default judgment is essentially a
rendition of the facts in the complaint. There may be some relevance insofar as Appellant did not
contest the complaint, but without more, it is difficult to say that the facts asserted therein, that
Appellant had written several bad checks, were actually established by these documents.
       Appellant makes an important point, however. Specifically, he argues that it is doubtful
that the jury understood the distinction between “the present criminal action and the federal
proceeding in Washington D.C.” This assertion is accurate as far as it goes, but Warren did testify
as to several important facts. Specifically, he stated that the action was civil and that there were
no criminal allegations at the federal level. He also conceded that there was no evidence that
Appellant knew of the hearing or had counsel present for the hearing and that federal
investigations did not look at the intent of a check writer.
       Additionally, there was copious evidence admitted, without objection, as to Appellant’s

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writing of bad checks. Specifically, his bank records were admitted. Appellant’s October 2007
statement showed that he deposited more than $1.6 million and withdrew or wrote checks for just a
little less than that amount. Nevertheless, he had about $1,275.00 in insufficient “paid item” and
“returned item” fees. On his November statement, more than $2.2 million was deposited and
slightly less was withdrawn. As with the previous month, the account was often overdrawn.
Three times the account was overdrawn by more than $100,000.00, and he was charged more than
$1,000.00 in insufficient fund fees.            The December 2007 statement shows that more than
$400,000.00 was deposited and checks of slightly more were presented. The account was
regularly overdrawn, and he was charged almost $1,000.00 in insufficient fund fees.
         Additionally, the State presented evidence that Appellant had written two checks to
another auction business that were not honored. One check was in the amount of $59,533.55, and
the other was for $126,312.91. Finally, a banker testified that Appellant defaulted on a loan and
that the bank had to foreclose on 130 head of cattle. The bank attempted to foreclose on “thirteen,
fourteen hundred” head of cattle, but the banker testified that they could not be located.
         Appellant’s defense was that he did not have the intent to steal the cattle, and that business
difficulties, not an intent to deprive, were behind his failure to make good on the checks that were
presented. In addition, Appellant’s attorney suggested, although there was scant evidence of this,
that the bank had reneged on an agreement to cover the checks.
         In light of the copious evidence that Appellant regularly overdrew his account in a
significant way, the inadmissible evidence that he had written six checks that were not honored,
two of which were the basis of the charge and were proved with direct evidence, did not play a
substantial and injurious role in the jury’s deliberations.2 This is especially so because of the
testimony that the federal proceeding was based only on the nonpayment of an auction bill and did
not include any consideration of intent.
         If this evidence had not been admitted, the jury would still know that Appellant wrote
checks for tens of thousands of dollars on many occasions when his account was overdrawn. The
inadmissible evidence was simply more of the same, and we hold that its admission did not affect
Appellant’s substantial rights. We overrule Appellant’s sole issue.



         2
           The fact that Appellant had been suspended from the livestock business was introduced elsewhere in the
trial without objection, so Appellant was not harmed by the inclusion of that information in the challenged documents.
See Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010).

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                                                           DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.


                                                                         SAM GRIFFITH
                                                                            Justice



Opinion delivered July 13, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                 (DO NOT PUBLISH)


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