                                  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

In the Matter of J.W., a Juvenile                                                    Page 2
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

In the Matter of J.W., a Juvenile                                                        Page 3
        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).

In the Matter of J.W., a Juvenile                                                        Page 4
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


In the Matter of J.W., a Juvenile                                                      Page 5
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

In the Matter of J.W., a Juvenile                                                   Page 6
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]




In the Matter of J.W., a Juvenile                                                     Page 7
