                                                                       PD-0246-15 & PD-0247-15
                                                                    COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                   Transmitted 4/6/2015 2:25:23 PM
APRIL 13, 2015                                                      Accepted 4/13/2015 3:27:29 PM
                                                                                      ABEL ACOSTA
                                 NO. PD-0246-15                                               CLERK
                                 NO. PD-0247-15

                                  IN THE
                        COURT OF CRIMINAL APPEALS
                                OF TEXAS
                                AT AUSTIN
                          _________________________

                      VALENTIN JUNIOR HERNANDEZ,
                                   Appellant

                                        v.

                           THE STATE OF TEXAS,
                                       Appellee
                          _________________________

                 On appeal in Cause Nos. F12-61625-H & F12-61626-H
                        from the Criminal District Court No. 1
                               Of Dallas County, Texas
                     And on Petition for Discretionary Review from
                          the Fifth District of Texas at Dallas
                  In Cause Nos. 05-13-00478-CR & 05-13-00479-CR
                          _________________________

     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                  _________________________

                                                 Counsel of Record:

            Lynn Richardson                      Nanette Hendrickson
            Chief Public Defender                Assistant Public Defender
                                                 Dallas County Public Defender’s Office
            Katherine A. Drew                    State Bar Number: 24081423
            Chief, Appellate Division            133 N. Riverfront Blvd., LB 2
                                                 Dallas, Texas 75207-399
                                                 (214) 653-3550 (telephone)
                                                 (214) 653-3539 (fax)

                        ATTORNEYS FOR PETITIONER/APPELLANT
                            LIST OF PARTIES
TRIAL COURT JUDGE
Robert Burns, Presiding Judge

APPELLEE
Valentin Junior Hernandez

APPELLEE’S ATTORNEYS
AT TRIAL
Stanley Mays
2214 Main St.
Dallas, TX 75202

ON APPEAL
Nanette Hendrickson, State Bar No. 24081423
Assistant Public Defender
Dallas County Public Defender’s Office
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399

STATE’S ATTORNEYS
AT TRIAL
Leah Thomson, State Bar No. 24036177
Brandi L. Wade, State Bar No. 24065835

ON APPEAL
Anne B. Wetherholt, State Bar No. 21235300
Assistant District Attorney
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399




                                    ii
                                       TABLE OF CONTENTS


LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES ....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 2
STATEMENT OF FACTS ........................................................................................ 2
GROUND FOR REVIEW ......................................................................................... 2
         Whether the Court of Appeals erred in holding that the best
         evidence rule does not apply to testimony regarding the contents of
         a document....................................................................................................... 2
ARGUMENT ............................................................................................................. 2
         FACTS ............................................................................................................. 3
         APPLICABLE LAW ....................................................................................... 4
         THE COURT OF APPEALS’ HOLDING IS INCORRECT ......................... 5
         CONCLUSION ............................................................................................... 9
PRAYER FOR RELIEF ............................................................................................ 9
CERTIFICATE OF SERVICE .................................................................................. 9
CERTIFICATE OF COMPLIANCE .......................................................................10




                                                          iii
                                   INDEX OF AUTHORITIES

Cases
Ali v. State,
  26 S.W.3d 82 (Tex. App.—Waco 2000, no pet.) ..............................................7
Englund v. State,
  946 S.W.2d 64 (Tex. Crim. App. 1997) ................................................... 4, 5, 6
Hernandez v. State,
 No. 05-13-00478-CR & 05-13-00479-CR, 2014 Tex. App. LEXIS 996 (Tex.
 App.—Dallas October 22, 2014).......................................................... 2, 6, 7, 8
Overton v. State,
 490 S.W.2d 556 (Tex. Crim. App. 1973) ......................................................3, 4
Ramsey v. Jones Enterprises,
  810 S.W.2d 902 (Tex. App.—Beaumont 1991) ...............................................5
Sharp v. State,
  707 S.W.2d 611 (Tex. Crim. App. 1986) ......................................................6, 7
Other Authorities
Weinstein, J. B., Berger, M. A., and McLaughlin, J.M. Weinstein's Evidence
 Manual. 2nd Ed. Chicago: M. Bender, 1995. 1002. Print.................................5
Rules
TEX. R. APP. P. 68.4 (i) .........................................................................................2
TEX. R. EVID. 1002................................................................................................4




                                                        iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Valentin Junior Hernandez, Appellant, respectfully presents to this

Honorable Court his Petition for Discretionary Review of the Fifth District

Court of Appeals’ Opinion affirming the trial court’s judgment.

              STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument because this case presents a question

of law on issues having statewide impact and possible reoccurrence. Oral

argument may be helpful to the members of this Court in the resolution of

the issues presented.

                        STATEMENT OF THE CASE

      Appellant was charged by indictment with the offense of aggravated

robbery with a deadly weapon in each case. (CR1: 16; CR2: 161). Appellant

pled not guilty to the charges in the indictments. (RR2: 6). A trial was held

before a jury, and the jury found Appellant guilty of the offenses. (RR3:

162). After a hearing on punishment, the jury assessed punishment at fifteen

years to serve on trial case number F12-61626 and twenty years to serve on

trial case number F12-61625. (RR4: 121). The trial court ordered both cases

to run concurrent to each other. (RR4: 121). Judgment was entered by the

trial court on April 3, 2013. (CR1: 42; CR2: 38). Notice of appeal was

timely filed. (CR1: 43; CR2: 47).



                                     1
 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      On February 3, 2015, in an unpublished opinion authored by Justice

Bridges, the Court of Appeals for the Fifth District of Texas affirmed the

trial court’s judgment. Hernandez v. State, No. 05-13-00478-CR & 05-13-

00479-CR, 2014 Tex. App. LEXIS 996, * 11 (Tex. App.—Dallas October

22, 2014). This Court granted an extension of time to file a Petition for

Discretionary Review, which is timely if filed on or before April 6, 2015.

                         STATEMENT OF FACTS

      The facts of this case, which are extensive, are adequately recited in

the Court of Appeal’s opinion, which is attached to this Petition as required

by TEX. R. APP. P. 68.4 (i).

      Suffice it to say that Appellant was charged with and convicted of

aggravated robbery with a deadly weapon in two separate cases. (CR1: 42;

CR2: 38; RR3: 162).

                           GROUND FOR REVIEW

Whether the Court of Appeals erred in holding that the best evidence
rule does not apply to testimony regarding the contents of a document.

                               ARGUMENT

      The Court of Appeals incorrectly applied the standard that “the [best

evidence] rule applies only where the purpose of the offered evidence is to




                                      2
prove the contents of the document.” Overton v. State, 490 S.W.2d 556, 559

(Tex. Crim. App. 1973).

FACTS

      Officer Cory Cook testified to his prior contacts with Appellant during

the punishment phase of the trial. (RR4: 22-31). Cook testified that he knew

Appellant as a child, but before he started committing crimes. (RR4: 28).

Otherwise, Cook’s only other interaction with Appellant was during an

investigation into an aggravated assault Appellant in which Appellant was a

suspect. (RR4: 24). Cook interviewed Appellant, but could not recall if

Appellant claimed any particular gang membership at that time. (RR4: 24).

      Cook testified that the Carrollton Police Department kept gang cards

regarding prior contacts with gang members. (RR4: 24, 28). Cook also

testified that the Carrollton Police Department had gang cards relating to

Appellant and his activities. (RR4: 28). Cook did not state that he was the

custodian of the records, and the gang cards were not admitted as business

records. (RR4: passim). Appellant objected to Cook testifying to the content

of the cards based on the best evidence rule. (RR4: 29). The trial court

overruled the objection. (RR4: 29). The gang cards were not produced for

inspection nor were they admitted during the trial. (RR4: passim).

Furthermore, Appellant’s trial counsel stated that he had not seen them.



                                     3
(RR4: 29). Over Appellant’s objection, Cook testified, from memory, that

the gang cards stated Appellant had contact with the Carrollton Police for

fighting, proclaiming he was a gang member, and intimidating his

neighborhood as part of a gang. (RR4: 29-30).

APPLICABLE LAW

        The best evidence rule states that to “prove the content of a writing,

recording, or photograph, the original writing, recording, or photograph is

required” except where allowed under the law. TEX. R. EVID. 1002. The rule

is applicable where the proposed evidence is needed to prove the contents of

the item. Overton v. State, 490 S.W.2d 556, 559 (Tex. Crim. App. 1973).

        Englund v. State provides the initial purpose behind the best evidence

rule:

             First, we review the rationale for the common-law rule
        on which Rule 1002 was based.

        “Four somewhat overlapping reasons have been advanced to
        justify a rule preferring production of the original:

        (1) The nature of documents is often such that the exact words
        are “of more than average importance, particularly in the case
        of operative or dispositive instruments . . . where a slight
        variation of words may mean a great difference in rights”.

        (2) Secondary evidence -- whether parol testimony or copies --
        is susceptible to both human and mechanical error. The rule,
        therefore, enhances the probability of accuracy.




                                       4
      (3) The rule promotes the prevention of fraud because it allows
      the parties to examine documents for any defects or alterations,
      and it dampens any desire to color testimony as to the contents
      of documents, since any testimony is subject to immediate
      corroboration.

      (4) The appearance of the original may furnish information as
      to its authenticity and significance that may be lacking in a
      copy, such as handwriting, paper and the like.”

Englund v. State, 946 S.W.2d 64 (Tex. Crim. App. 1997)(emphasis added),

(quoting J. Weinstein, M. Berger & J. McLaughlin, Weinstein’s Evidence P

1002 (1995)).

      The Beaumont Court of Appeals held it was error to allow a witness

to testify regarding the content of documents regarding title to real property.

      Appellee’s expert gave hearsay testimony as to the existence
      and content of documents in writing, but such documents were
      never produced and admitted into evidence. This is precisely
      what TEX. R. CIV. EVID. 1002 was adopted to prevent. The
      best evidence of the content of documents is the documents
      themselves. The trial court erred in admitting hearsay testimony
      to prove up the content of documents without a proper showing
      that the subject documents were unavailable through no fault or
      failure on the part of the party offering same.

Ramsey v. Jones Enterprises, 810 S.W.2d 902 (Tex. App.—Beaumont
1991).

THE COURT OF APPEALS’ HOLDING IS INCORRECT

      The Court of Appeals’ decision is in conflict with the holding of this

Court and other Courts of Appeals.




                                       5
      The case at bar demonstrates the exact purpose for the best evidence

rule, as stated in Englund.

      “(3) The rule promotes the prevention of fraud because it
      allows the parties to examine documents for any defects or
      alterations, and it dampens any desire to color testimony as to
      the contents of documents, since any testimony is subject to
      immediate corroboration.”

Englund, 946 S.W.2d 64 (Tex. Crim. App. 1997) (emphasis added). This

Court has ruled that the best evidence rule prevents a witness from

misrepresenting the content of a document while testifying because the

parties can inspect the document and impeach the testimony, if needed. The

best evidence rule was pertinent in the case at bar since it would have

ensured the veracity of Officer Cook’s testimony and allowed defense

counsel to impeach him if the gang cards were present. Since Officer Cook’s

testimony was elicited to prove the contents of the gang cards, the best

evidence rule was applicable in Appellant’s case.

      Furthermore, in its opinion, the Court of Appeals stated that the “best

evidence rule does not apply when the item in question is not admitted into

evidence to prove its contents.” Hernandez, 05-13-00479-CR, 2015 Tex.

App. LEXIS 996, at *3 (quoting Sharp v. State, 707 S.W.2d 611, 618 (Tex.

Crim. App. 1986)). In Sharp, the issue was whether the trial court erred by

allowing the prosecutor to question the witness using a transcript of a tape



                                     6
recording as opposed to the actual recording itself. Id. Both items of

evidence were present at trial and the State did not oppose using the tape. Id.

Therefore, the Court of Criminal Appeals ruled that since neither item was

admitted as evidence, the best evidence rule did not apply. Id. Additionally,

the Court ruled the best evidence rule only applied to documents, not tape

recordings. Id.

      Sharp differs from the case at bar because the gang cards were not

present during the hearing; therefore, they could not be entered as evidence.

Even if they were present, the trial court overruled Appellant’s objection. As

such, the State did not seek to admit them as evidence. Furthermore, the

evidence in Sharp was not documentary evidence whereas it was in the

present case. Id.

      The Court of Appeals in its opinion also cited Ali v. State as holding

that “the best evidence rule does not apply if the document and contents in

question are only collaterally related to the issues in the case.” Hernandez,

05-13-00479-CR, 2015 Tex. App. LEXIS 996, at *3-4 (quoting Ali v. State,

26 S.W.3d 82, 88 (Tex. App.—Waco 2000, no pet.)). However, the gang

cards were not collateral to Appellant’s case. During the trial on punishment,

the State was asking Officer Cook about his knowledge regarding

Appellant’s gang status. The State specifically asked if he knew Appellant



                                      7
was in a gang based on his knowledge of Appellant as a child and during

Cook’s time as an officer. Cook specifically said that Appellant was not in

trouble as a child. (RR4: 28). Cook also investigated Appellant as a suspect

in a prior offense. (RR4: 23-4). When specifically asked by the State about

his claimed gang status at that time, Cook stated he could not recall if

Appellant told him during the investigation if he was in a gang or not. (RR4:

24).

       The State then asked Cook about the content of the gang cards

regarding Appellant’s gang status. (RR4: 24, 28). In that regard, the State

asked Cook, “Based on his gang card, what types of contacts has he had with

the gang unit?” (RR4: 29). Contrary to the Court of Appeal’s opinion which

stated this only provided “background relating to the ascertainment of

appellant’s   gang   affiliation,”   this   question   specifically   references

Appellant’s gang affiliation, the exact issue the State had been asking about

during the entirety of Officer Cook’s testimony. Hernandez, 05-13-00479-

CR, 2015 Tex. App. LEXIS 996, at *7. Therefore, the gang card content was

not collateral, but the exact issue the State sought to prove through Cook’s

testimony.




                                       8
CONCLUSION

      The Court of Appeals’ decision to affirm the trial court’s ruling is

contradictory to the rulings of this Court. This Court should grant

discretionary review to resolve this discrepancy between the Court of

Appeals’ ruling and the ruling of this Court.

                           PRAYER FOR RELIEF

      For the reasons herein alleged, Appellant prays this Court grant this
petition and, upon reviewing the judgment entered below, remand the case for a
new trial.
                                       Respectfully submitted,
                                       Lynn Richardson
                                       Chief Public Defender

                                       /s/ Nanette Hendrickson
                                       Nanette Hendrickson
                                       Assistant Public Defender
                                       State Bar No. 24081423

                      CERTIFICATE OF SERVICE

      I hereby certify that on the 6th day of April, 2015, a true copy of the
foregoing petition for discretionary review was served on Anne B. Wetherholt,
Assistant District Attorney, Dallas County Criminal District Attorney’s Office,
133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic
delivery at DCDAAppeals@dallascounty.org and hand delivery; and was also
served on, Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046,
Austin, Texas, 78711 by electronic delivery and by depositing same in the
United States Mail, Postage Prepaid.

                                       /s/ Nanette Hendrickson
                                       Nanette Hendrickson


                                      9
                   CERTIFICATE OF COMPLIANCE

      I certify that the foregoing Petition for Discretionary Review contains
2,376 words.


                                      /s/ Nanette Hendrickson
                                       Nanette Hendrickson




                                     10
APPENDIX
