Arthur Ray Dickey v. State ( 2008 )

Opinion filed August 14, 2008

Opinion filed August 14, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-07-00087-CR

                                                    __________

                                  ARTHUR RAY DICKEY, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                 Trial Court Cause No. CR18347

                                              M E M O R A N D U M   O P I N I O N

The jury convicted Arthur Ray Dickey of assaulting a public servant, a third degree felony under Tex. Penal Code Ann. ' 22.01(b)(1) (Vernon Supp. 2007).  The jury assessed punishment at confinement for ten years.  We affirm.

In his sole issue on appeal, appellant challenges the admission into evidence during the punishment phase of trial of State=s Exhibit No. 3.  Citing Crawford v. Washington, 541 U.S. 36 (2004), and Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005), appellant argues that admission of the exhibit violated his constitutional right to confront the witnesses against him.  See U.S. Const. amend. VI.  We disagree. 

The exhibit is a computer-generated printout from the Correctional Care System of the Texas Youth Commission (TYC) where appellant had been committed for over two years.  The printout contains an incident summary indicating generally that there were 150 incidents involving appellant.  The incidents included Adisruption of program,@ Adanger to others,@ Aself-referral to security,@ Alying/falsify document/cheatin,@ Aasslt staff/vol-bodily injury,@ Arefuse to follow staff inst sp,@ Afleeing apprehension,@ Apossession of weapon,@ Astealing (under $50),@ Afailure to abide by dress code,@ Athreat of escape,@ Atattooing/body piercing,@ Acontraband (except drug/weapon),@ Aundesignated area,@ Aposs/proh item/use sub/intox,@ Agang related activity,@ Aasslt threat-immin. bodily inj,@ and Aasslt yth/othr-bodily injury.@  The printout gave the dates of the incidents and indicated whether a hearing was held but did not reveal any specific facts about the incidents. 

Appellant=s TYC caseworker, Jerome Finley, testified at the punishment phase of trial.  He testified that appellant had originally been committed to TYC for a probation violation regarding an assault.  Finley testified that, while at TYC, appellant had refused to comply with staff instructions,  had told others he was in a gang, and had often responded in an aggressive manner.  Finley identified State=s Exhibit No. 3 as a printout from the system that tracks all of the information regarding security referrals or incidents.  Finley indicated that such records were kept during the regular course of the business activities at TYC and that entries are made at or near the time of the events by someone with knowledge of the events.  The State then offered the exhibit into evidence, and appellant objected based upon the denial of his right to confront the witnesses against him B pointing out that Finley did not have personal knowledge of all of the incidents listed in the exhibit. The trial court, finding that the information was not testimonial in nature, overruled appellant=s objection.

In Crawford, the Supreme Court recognized that the Confrontation Clause of the Sixth Amendment bars the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.  541 U.S. 36, 59.  Relying upon Crawford, the Court of Criminal Appeals in Russeau held that the introduction of several incident reports and disciplinary reports at the punishment phase of trial violated the defendant=s Sixth Amendment right to confront the witnesses against him.  171 S.W.3d at 880-81. 

Although appellant contends that Russeau controls the issue in this case, we find that the facts are distinguishable.  In Russeau, the reports contained statements that appeared to have been written by corrections officers and purported to document observations, in detailed and graphic terms, regarding numerous disciplinary offenses.  Id. at 880.  The individuals making those observations did not testify at trial.  Id.  The court determined that the statements contained in the reports were testimonial in nature and were inadmissible under the Confrontation Clause.  Id.  The Russeau court specifically held, AThe trial court erred in admitting those portions of the reports that contained the testimonial statements.@ Id. at 881 (emphasis added); see Davis v. Washington, 547 U.S. 813 (2006) (explaining when statements made to law enforcement are Atestimonial@). 

In the present case, the printout did not contain any such testimonial statements, narratives of the events, or written observations B a distinction recognized by one of our sister courts.  See Grant v. State, 218 S.W.3d 225, 230-32 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d); Ford v. State, 179 S.W.3d 203, 208-09 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (upholding admission at punishment phase of inmate disciplinary records that contained only a sterile recitation of offenses and the punishments received) ; see also In re J.R.L.G., No. 11-05-00002-CV, 2006 WL 1098944 (Tex. App.CEastland Apr. 27, 2006, no pet.) (mem. op.).  The sterile printout, merely listing TYC incidents for which appellant was cited, does not contain any statements that are testimonial in nature.  Appellant=s issue is overruled. 

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

August 14, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.