Hernandez, Valentin Junior

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

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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

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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 *1 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).

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 *3 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. *4 (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.

(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.

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 *7 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 *8 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. *9

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

CERTIFICATE OF COMPLIANCE

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

/s/ Nanette Hendrickson Nanette Hendrickson

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