                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00169-CR


MARQUAIS DESHAWN                                                    APPELLANT
GATEWOOD

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION1

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      A jury convicted Appellant Marquais Deshawn Gatewood of aggravated

robbery with a deadly weapon and assessed his punishment at thirty years‘

confinement. The trial court sentenced him accordingly. Appellant brings three

points on appeal, contending that the trial court violated his Sixth Amendment

right to confrontation by admitting an ATM receipt containing testimonial

statements; that the trial court abused its discretion by admitting over a hearsay

      1
       See Tex. R. App. P. 47.4.
objection the ATM receipt, for which the State failed to lay the predicate; and that

the trial court violated his rights to equal protection by overruling his Batson

challenge. Because the trial court committed no reversible error, we affirm the

trial court‘s judgment.

I. Background Facts

      On February 1, 2009, Stephen Simons took his wife‘s SUV to a Quikway

gas station for gas. While he was pumping gas, he saw a dark green sedan pull

into the station and park on the other side of the gas tank. Simons took his

receipt from the gas pump and then noticed a man standing in the open door to

his wife‘s SUV, blocking the driver‘s seat. The man, who was holding a rifle, told

Simons to ―[c]ome here.‖ At trial, Simons identified the man as Appellant.

      Simons ran toward the entrance of the Quikway. At the entrance, he was

met by a man wearing a blue t-shirt. The man had his hands wrapped up in his t-

shirt. Simons threw his wallet on the ground and started walking away. The man

headed to the green sedan, and Simons heard the car drive away. Simons noted

a portion of the license plate number—―19.‖       He drove home and called the

police.

      The Quikway had surveillance cameras, and a police officer dispatched to

answer the robbery call went to the store to watch the videotape. After watching

the videotape, the officer broadcast the descriptions of the car and of one of the

suspects.

      On that same day, Ghassan Daouk was working at a nearby Oasis Mart.

A customer came into the store and used the ATM. After the customer left,
                                         2
Daouk took the ATM receipt from the machine and tossed it onto the floor. Later,

a Fort Worth police officer came into the store and asked if anyone had recently

used the ATM machine. Daouk gave the officer the ATM receipt. The receipt,

admitted into evidence over Appellant‘s objection, states the location of the store,

the time the receipt was printed, the name ―SIMONS/STEPHEN P,‖ what is

purported to be the last four digits of the card number, and ―PIN ERROR.‖

      Officer B.W. Denson received the descriptions of the vehicle and one of

the suspects through dispatch. Denson later saw a green Cadillac at the Oasis

Mart with a ―19‖ in the license plate number. Denson saw a man matching the

description of one of the suspects leave the store and get in a green Cadillac.

Denson followed the car and made a traffic stop at a house behind the Oasis

Mart. Appellant was driving the car.

II. Admission of ATM Receipt

      A. No Confrontation Clause Violation

      In his first point, Appellant argues that the trial court committed

constitutional error by admitting the ATM receipt, thereby denying him his Sixth

Amendment right to confront and cross-examine witnesses against him. The

State argues that the right of confrontation applies only to testimonial statements,

citing Crawford v. Washington.2 A statement is testimonial when made ―under




      2
       541 U.S. 36, 51–52, 124 S. Ct. 1354, 1364 (2004).

                                         3
circumstances which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial.‖3

      The ATM receipt in the case now before this court is not the testimony of a

witness.     It is more akin to a reading on a clock, a date on a calendar, a

photograph, or a video or audio recording. We hold that the ATM receipt is not a

statement by a witness that entitles the defendant to cross-examine the maker of

a statement. We therefore hold that the trial court did not violate Appellant‘s right

of confrontation. We overrule Appellant‘s first point.

      B. Hearsay Violation, But Harmless

      In his second point, Appellant contends that the trial court abused its

discretion by admitting the ATM receipt over his hearsay objection when the

State failed to lay the proper predicate for the business records exception. The

State argues that the receipt is not hearsay because hearsay is defined as ―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.‖4         ―A

‗declarant‘ is a person who makes a statement.‖5 A statement is either ―an oral

or written verbal expression‖ or ―nonverbal conduct of a person, if it is intended

by the person as a substitute for verbal expression.‖6


      3
       Id.
      4
       Tex. R. Evid. 801(d).
      5
       Tex. R. Evid. 801(b).
      6
       Tex. R. Evid. 801(a).

                                          4
         Appellant candidly points out that this court, as well as several other

courts, has found that computer self-generated data is not hearsay.7            But

Appellant also points out that printouts of data placed into a computer by a

person, computer-stored data, are hearsay.8 The Miller court found that the trial

court abused its discretion by admitting a cell phone bill over Miller‘s

Confrontation Clause and hearsay objections.9 As Appellant argues, the Miller

court rejected the State‘s bare assertion that a computer self-generated cell

phone bill was not testimonial or alternatively, sufficiently trustworthy under Ohio

v. Roberts.10

         To conclude that the ATM receipt admitted as evidence in the case before

us was automatically generated and therefore not hearsay, we would have to

improperly rely on personal experience because the record is silent.11 Similarly,

there is no evidence that an individual entered the data contained on the ATM

receipt. We have no idea of the source of the ATM receipt.

         7
        See Burleson v. State, 802 S.W.2d 429, 439–40 (Tex. App.—Fort Worth
1991, pet. ref‘d) (holding display showing the number of records in payroll
commission file was not hearsay because it was computer-generated); Miller v.
State, 208 S.W.3d 554, 563 (Tex. App.—Austin 2006, pet ref‘d) (noting
distinction between printouts of data placed into a computer by a person and
printouts of data generated by the internal operations of a computer itself).
         8
         Stevenson v. State, 920 S.W.2d 342, 343 (Tex. App.—Dallas 1996, no
pet.).
         9
         Miller, 208 S.W.3d at 563–64.
         10
        Id. at 564; see Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539
(1980), abrogated by Crawford, 541 U.S. at 68, 124 S. Ct. at 1374.
         11
             See Miller, 208 S.W.3d at 563.

                                              5
      Further, Daouk, the clerk at the Oasis Mart, through whom the ATM receipt

was admitted over Appellant‘s hearsay and confrontation objections, testified that

he had no knowledge of the records generated by the ATM machine. Nor did he

have any knowledge of whether or how the records were kept and whether it was

the regular practice to keep them. The State therefore did not lay a business

records exception predicate.12      As a result, we must hold that the trial court

abused its discretion by admitting the ATM receipt.13

      Having found error, we must conduct a harm analysis to determine

whether the error calls for reversal of the judgment. 14 Because we determine

that the error is not constitutional, but rather solely a hearsay violation, rule

44.2(b) is applicable.15   We therefore disregard the error if it did not affect

Appellant=s substantial rights.16 A substantial right is affected when the error had

a substantial and injurious effect or influence in determining the jury=s verdict.17




      12
        See Tex. R. Evid. 803(6).
      13
        See Miller, 208 S.W.3d at 564.
      14
        See Tex. R. App. P. 44.2.
      15
       See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Crim. App. 2001).
      16
        See Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998) (op. on reh=g), cert. denied, 526 U.S. 1070 (1999).
      17
       King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)).

                                          6
Conversely, an error does not affect a substantial right if we have Afair assurance

that the error did not influence the jury, or had but a slight effect.@18

      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury=s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case.19 We may also consider the jury instructions, the State=s theory and any

defensive theories, whether the State emphasized the error, closing arguments,

and even voir dire, if applicable.20

      Viewing the record as a whole, Simons, the complainant, identified the

robber as Appellant. Simons saw the dark green sedan that was connected to

Appellant. He noted a portion of the license plate number—―19.‖ The Quikway

had surveillance cameras, and the police officer who was dispatched to answer

the robbery call watched the videotape. The officer broadcast the descriptions of

the car and of one of the suspects. On the same day, a customer came into the

nearby Oasis Mart and used the ATM. Without considering the contents of the

ATM receipt, we also note that Denson received the descriptions of the green

sedan and one of the suspects through dispatch. Denson later saw a green

Cadillac at the Oasis Mart and saw that the license plate contained a ―19.‖ He

      18
        Solomon, 49 S.W.3d at 365; Johnson v. State, 967 S.W.2d 410, 417
(Tex. Crim. App. 1998).
      19
        Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
      20
        Id. at 355–56.

                                           7
saw a man matching the description of one of the suspects leave the store and

get in a green Cadillac. Denson followed the car and made a traffic stop at a

house behind the Oasis Mart. Appellant was driving the car.

      We hold that, after examining the record as a whole, the evidence

exclusive of the ATM receipt was abundant. We do not rely solely on eyewitness

identification, but also upon objective evidence of videotapes, the green sedan,

and the partial license plate number, as well as upon Simons‘s testimony

regarding the rifle and the theft. In light of the other abundant evidence of guilt,

the trial court‘s error in admitting the ATM receipt was harmless.21 We overrule

Appellant‘s second point.

III. No Batson Error

      In his third point, Appellant argues that the trial court violated the federal

Equal Protection Clause by overruling his Batson challenges to the State‘s

strikes against two minority panel members, Jones and Glover. As the Texas

Court of Criminal Appeals has explained,

      A Batson challenge to a peremptory strike consists of three steps.
      First, the opponent of the strike must establish a prima facie showing
      of racial discrimination. Second, the proponent of the strike must
      articulate a race-neutral explanation. Third, the trial court must
      decide whether the opponent has proved purposeful racial
      discrimination.



      21
        See Tex. R. App. P. 44.2(b); King, 953 S.W.2d at 271; see also Neal v.
State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008) (assuming ATM receipt was
not properly authenticated and was erroneously admitted but holding error
harmless in light of overwhelming evidence of guilt shown by other evidence),
cert. denied, 555 U.S. 1154 (2009).

                                         8
            The trial court‘s ruling in the third step must be sustained on
      appeal unless it is clearly erroneous. Because the trial court‘s ruling
      requires an evaluation of the credibility and demeanor of prosecutors
      and venire members, and because this evaluation lies peculiarly
      within the trial court‘s province, we defer to the trial court in the
      absence of exceptional circumstances.22

      Appellant argues that he identified for the trial court the four minority venire

members—numbers 2, 13, 14, and 20—Jones, Glover, Gooden, and Washington

respectively. It is uncontested that these venire members were members of a

racial minority. It is also uncontested that the State struck three of them.

      The trial court instructed the prosecution to state its reasons for the

challenged strikes, and in overruling the Batson challenges, the trial court found

that Appellant had sufficiently established a prima facie showing.23 The State

presented its reasons for striking the specified venire members. The prosecutor

stated that number 2, Jones, was prosecuted for assault bodily injury-family

violence, and he had inaccurately stated that the case was dismissed. Number

13, Glover, the prosecutor explained, had a pending accusation of assault-family

violence that Glover had inaccurately stated was a Class C charge. The State

also stated as an additional reason for this strike that because Glover had a

pending case in Tarrant County, she could have a bias or prejudice against the

State. Glover, however, stated that she had no bias against the State.



      22
        Grant v. State, 325 S.W.3d 655, 657 (Tex. Crim. App. 2010) (citations
omitted).
      23
        See Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.), cert.
denied, 555 U.S. 846 (2008).

                                          9
      As Appellant pointed out in the Batson hearing, two nonminority panel

members who had criminal histories were not struck. Number 35, Zweiacker,

and number 8, Birchfield, both had criminal convictions for driving while

intoxicated (DWI). Zweiacker was arrested for DWI in March 1998, and Birchfield

was arrested for DWI in January 1991. Appellant points out that those venire

members were not asked about their criminal history during voir dire, and they

were not members of any racial minority. The State argues that the two venire

members with DWI histories had committed their offenses more than ten years

before the voir dire examination below. On the other hand, the State contends,

Glover‘s case was so recent that it was still pending. The State also argues that

Jones falsely indicated that the charge against him had been thrown out and that

Glover had misrepresented the seriousness of the charge against her. The State

argues that nothing in the record suggests that the two venire members who

were not stricken were less than forthcoming.

      The trial court heard the prosecutor‘s explanations and concluded that the

State had offered ―a reasonable race gender neutral explanation‖ for its strikes

and that the strikes were valid.24 We conclude that on their face, the State‘s

explanations for exercising preemptory challenges against Glover and Jones

were race neutral.       Appellant did not show that the facial and neutral

explanations were a pretext for discrimination. Nor does the record reflect that




      24
       See id. at 448.

                                       10
the trial court‘s ruling was clearly erroneous.25 Because Appellant has not shown

that the trial court‘s ruling was clearly erroneous, we overrule his third point.

IV. Conclusion

      Having overruled Appellant‘s three points on appeal, we affirm the trial

court‘s judgment.




                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).

LIVINGSTON, C.J. concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 23, 2011




      25
       See id. at 447–48; Whitsey v. State, 796 S.W.2d 707, 721 (Tex. Crim.
App. 1989) (op. on reh‘g).

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