Hislop v. State , 2001 Tex. App. LEXIS 8006 ( 2001 )

BEN Z. GRANT, Justice,

concurring.

The State is required under Rule 901 to provide sufficient evidence to show that the proposed exhibit is what it purports to be. Tex.R. Evid. 901.

The following constitutes the predicate laid for purposes of introducing the letter purportedly written by Hislop:

Q. Okay. And I hand you what’s been marked as State’s Exhibit Number 10.

A. It’s a billfold and two letters what we located on top of the TV that was located on the — the—I can’t think of what it’s called. It was located right beside the couch on the coffee table.

Q. Okay. Okay. The TV was on the coffee table right beside the couch?

A. Correct. They were located on top of the TV part.

Q. Okay. I’ll hand you what’s been marked as State’s Exhibit Number 19, and ask you if that’s one of the letters that was depicted in State’s Exhibit Number 10.

A. Yes, sir, it is.

Q. Okay. You found that on top of the TV underneath the billfold?

A. Yes, sir.

Q. I’ll hand you what’s been marked as State’s Exhibit Number 20, and ask you if that’s one of the letters that’s depicted in State’s Exhibit Number 10.

A. Yes, sir, it is.

MR. MOSS: Your Honor, we offer State’s Exhibit Number 20 and State’s Exhibit Number 19, and their contents.

MR. NIX: Your Honor, until further evidence is exhibited to show who wrote these letters, I’m going to object to their content being hearsay.

THE COURT: Let me see them. Overrule the objection. The exhibits are admitted.

At that point in the trial, the prosecution read the letter in question to the jury. No evidence of any nature was offered to show that the letter in question contained the handwriting or signature of Hislop, not by comparison, not by a writing expert, not by a person familiar with Hislop’s handwriting, and not by a person who saw him write the letter. Although not authenticated, the majority opinion in justifying its admission in evidence refers to the exhibit as containing Hislop’s signature.

The majority suggests that the proper objection was not made, but an immediate objection was made that no evidence had been offered to show who wrote the letter and that the content was hearsay. Tex.R. Evid. 901 requires authentication, and in the present case, there was none. Thus, there was no evidence to show that the proposed exhibit was what it was purported to be, i.e., a letter written by Hislop. The content of the letter was hearsay inasmuch as it was an out-of-court statement offered into evidence to prove the truth of the matter asserted. See Tex.R. Evid. 801(d). The statement could have been admitted under one of the exceptions to the hearsay rale, e.g., Tex.R. Evid. 803(24), a statement subjecting the declarant to criminal liability, if the State had first established that the written statement was made by Hislop.

The majority opinion seeks to bootstrap this out-of-court declaration by assuming that it is a declaration made by the defendant and offered against him; however, to fit within the exception, there must first be evidence that the letter was a statement made by the defendant.²

I concur in the results in the alternative reason set forth by the majority opinion that this is not a reversible error because of the other strong evidence introduced against Hislop that proves the same matters as the content of the letter. Pursuant to Tex.R.App. P. 44.2(b), such an error must be disregarded when it does not affect the substantial rights of the defendant.

For the reasons stated, I concur.

2 . I recognize that in some situations, the content of a document may be used along with other circumstances to justify its admission into evidence. In construing the similar federal rule, the Eighth Circuit determined that the content of a writing may be used to aid in determining the identity of the declarant. United States v. Wilson, 532 F.2d 641, 644 (8th Cir.1976). This can occur when the writing deals with a matter sufficiently obscure or particularly within the knowledge of the person so that the content of the writing is not a matter of common knowledge. See 5 J. Wein-stein & M. Berger, Weinstein's Evidence, P 901(b)(4)[01], at 901-49 (1990).