Jackie Mae Cornwell v. State ( 2015 )

NO. 12-14-00294-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JACKIE MAE CORNWELL, § APPEAL FROM THE
APPELLANT
V. § COUNTY COURT
THE STATE OF TEXAS,
APPELLEE § WOOD COUNTY, TEXAS
MEMORANDUM OPINION
Jackie Mae Cornwell appeals the revocation of her community supervision. In two
issues, Appellant argues that the testimony of the community supervision officer was
inadmissible. We affirm.
BACKGROUND
Appellant was charged by information with burglary of a vehicle, a Class “A”
misdemeanor, and entered a plea of “guilty” to the offense charged. Appellant and her counsel
signed a document entitled “Waiver of Jury Trial and Plea of Guilty” in connection with her
guilty plea. The trial court accepted Appellant’s plea, adjudged Appellant guilty of the offense
of burglary of a vehicle, and assessed Appellant’s punishment at one hundred eighty days of
confinement and a $700.00 fine. However, the trial court ordered that imposition of Appellant’s
punishment be suspended and that she be placed on community supervision for one year.
Later, the State filed a motion to revoke Appellant’s community supervision, alleging that
Appellant had violated its terms. At the hearing on the motion, Appellant pleaded “not true.”
Thereafter, the trial court found the State’s allegations in its motion to be “true,” revoked
Appellant’s community supervision, and assessed her punishment at one hundred twenty days of
confinement and a $700.00 fine. This appeal followed.
ADMISSIBILITY OF EVIDENCE
In two issues, Appellant argues that the community supervision officer’s testimony was
inadmissible because he did not have personal knowledge of her compliance with the conditions
of her community supervision and because her community supervision file was not “proved up”
under the business records predicate.
Standard of Review
A trial court has considerable discretion in determining whether to exclude or admit
evidence. See Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); State v.
Dudley, 223 S.W.3d 717, 724 (Tex. App.—Tyler 2007, no pet.). Absent an abuse of discretion,
we will not disturb a trial court’s decision to admit or exclude evidence. See Martin v. State,
173 S.W.3d 463, 467 (Tex. Crim. App. 2005). We will uphold the trial court’s ruling if it was
within the zone of reasonable disagreement. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.
Crim. App. 2000); see also Martin, 176 S.W.3d at 467 (holding judgment must be upheld if
ruling was correct on any theory of law applicable to case in light of what was before trial court
at time ruling was made).
Applicable Law
A witness may not testify to a matter unless evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. TEX. R. EVID. 602. Generally,
community supervision officers may testify from their department’s records if the proper
predicate is laid. See Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim. App. 1978); Canseco
v. State, 199 S.W.3d 437, 439–40 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
Records of regularly conducted activity are not excluded by the hearsay rule even though
the declarant is available as a witness. TEX. R. EVID. 803(6). A record of a regularly conducted
activity is
[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person
with knowledge, if kept in the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified witness, [ ] unless
the source of information or the method or circumstances of preparation indicate lack of
trustworthiness.
TEX. R. EVID. 803(6).
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Analysis
At the hearing, Matt Davenport, a supervisor for misdemeanor offenses with Wood
County Community Supervision and Corrections, testified that he had been the supervisor for
approximately one year. He stated that he was the custodian of records for all misdemeanor
offenders who were on community supervision, and had knowledge of Appellant’s community
supervision from these records. Davenport said that as part of his job, he was required to review
all the records of anyone on community supervision, including Appellant. He testified that he
kept these records, including Appellant’s, in the regular course of business. According to
Davenport, he kept these records locked in his office, and was a person with knowledge about
the events and items recorded in the community supervision records.
Davenport testified regarding Appellant’s community supervision, and specifically her
compliance with community service and payments of fines, court costs, and court appointed
counsel. However, he was not the supervisor when Appellant began her community supervision,
did not manage Appellant’s case, and was not her community supervision officer.
Appellant argues in her first issue that Davenport’s testimony was inadmissible because
he did not have personal knowledge of her community supervision compliance. See TEX. R.
EVID. 602. However, Davenport’s testimony showed that he was custodian of the misdemeanor
community supervision and had personal knowledge of the events and items recorded in those
records. He was able to identify the specifics of Appellant’s community supervision as well as
testify to exactly which conditions she had violated. From this evidence, we conclude that
Davenport demonstrated his personal knowledge of Appellant’s community supervision
compliance. Therefore, the trial court did not abuse its discretion in admitting his testimony.
Appellant’s first issue is overruled.
Appellant contends in her second issue that Davenport’s testimony was inadmissible
because her file was not “proved up” under the business records predicate. See TEX. R. EVID.
803(6). To preserve an issue for review, a party must timely object and state the grounds for the
ruling sought from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context of the objection. TEX. R.
APP. P. 33.1(a)(1)(A). Here, Appellant first made a hearsay objection to Davenport’s testimony
regarding the fines Appellant currently owed based on the community supervision records. The
State replied that Davenport maintained these records and reviewed them for his job. Then,
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Appellant stated that there was “no predicate that these records are . . . .” The trial court
interrupted Appellant and overruled her objection. Later, Davenport was asked if Appellant paid
a fee to the community supervision and corrections department. Again, Appellant objected that
the State had not laid the proper predicate for a business record. The trial court overruled her
objection.
Objecting on the basis that no predicate has been laid is a general objection that lacks the
specificity necessary to advise the trial court of the basis for the objection. See Smith v. State,
683 S.W.2d 393, 403–04 (Tex. Crim. App. 1984). Such an objection fails to preserve the issue
for review. Id. In her objection, Appellant did not inform the trial court how the predicate for
the community supervision records was deficient. Therefore, she failed to preserve this issue for
review. See TEX. R. APP. P. 33.1(a)(1). Appellant’s second issue is overruled.
DISPOSITION
Having overruled both of Appellant’s issues, we affirm the judgment of the trial court.
GREG NEELEY
Justice
Opinion delivered June 30, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 30, 2015
NO. 12-14-00294-CR
JACKIE MAE CORNWELL,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the County Court
of Wood County, Texas (Tr.Ct.No. 35906)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.