Gross v. State , 624 S.W.2d 287 ( 1981 )

OPINION

JORDAN, Justice.

Appellant was convicted on three counts of unlawful practice of dentistry after trial to a jury. His punishment was assessed at one year in jail and a five hundred dollar ($500) fine on each count, with probation recommended on all counts by the jury and granted by the court.

The evidence revealed that a Mrs. Trot-man, who resided outside of Tarrant County, made four (4) different trips to appellant’s office in Fort Worth for the purpose of having appellant make dentures (false teeth) for her. On her last visit she received her dentures. Appellant was thereafter charged with four separate counts of unlawful practice of dentistry. One of the four (4) counts was dismissed before trial.

By his first ground of error appellant contends that the trial court erred in overruling his motion for instructed verdict because the evidence was insufficient to prove that appellant did not have a license to practice dentistry in the State of Texas.

At the trial, a Mr. Gassett, Chief Investigator of the Texas State Board of Dental Examiners, called by the state, testified that he had in his possession in the courtroom the original ledger of the Texas State Board of Dental Examiners which listed all of those licensed to practice dentistry in Texas between 1930 and February, 1978. He further testified that although he had searched that list on many occasions, including immediately before he took the witness stand, he had failed to find the name of the appellant, Danny L. or Danny Lee, or Danny Gross on it.

The list of all those licensed to practice dentistry since 1930 down to February of 1978 was not introduced in evidence. This was the original of the State Board of Dental Examiners list of all licensees and it was present in the courtroom during all of the witness Gassett’s testimony and was subject to inspection by appellant or his attorney. Appellant’s attorney in fact did cross-examine the witness from this list. There was no objection to Gassett’s testimony.

Appellant argues that because the list itself was not introduced in evidence, Gas-sett’s testimony was nothing but hearsay, and that the State had no evidence to prove that appellant was not licensed to practice dentistry. It is his contention that the list was the best evidence and should have been introduced. The law is to the contrary.

The ledger, or list, from which the witness testified, was obviously admissible under the Business Records Act, Tex.Rev.Civ. Stat.Ann. art. 3737e, (Supp.1980-81) § 1. Section 3 of this act provides that absence of a record of an alleged act, event, or condition shall be competent to prove the nonoccurrence of the act or event, or the non-existence of the condition.

Where, as here, the report or the record, is produced, accounted for, and available for inspection by appellant’s counsel, the rule requiring production of the record as the best evidence is satisfied. Alvarez v. State, 508 S.W.2d 100 (Tex.Cr.App., 1974); Cozby v. State, 506 S.W.2d 589 (Tex.Cr.App., 1974).

In his second ground of error, appellant says the trial court erred in denying his special written requested charge on circumstantial evidence because there was no direct evidence on whether or not he was licensed to practice dentistry in the State of Texas. Appellant says that the witness Gassett’s testimony about the list kept by the State Board of Dental Examiners is at best circumstantial evidence. We do not agree. The testimony of Gassett was direct evidence of a fact necessary to be proved, that appellant in fact was not licensed to practice dentistry in Texas. This testimony, admissible under art. 3737e, § 3, proved a necessary negative. It was not circumstantial proof. What better or more direct way could there be to prove that appellant was not licensed? The difference between direct evidence and circumstantial evidence is that the former applies directly to the ultimate fact to be proved, while the latter is the direct proof of a minor fact which, by logical inference, demonstrates the fact to be proved. Frazier v. State, 576 S.W.2d 617 (Tex.Cr.App., 1978); Oliver v. State, 551 S.W.2d 346 (Tex.Cr.App., 1977).

Judgment is affirmed.