Blackstock, Darlene Drude v. State

Affirmed and Memorandum Opinion filed January 9, 2007

Affirmed and Memorandum Opinion filed January 9, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-03-01415-CR

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DARLENE DRUDE BLACKSTOCK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 940197

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

Appellant, Darlene Drude Blackstock, was convicted of aggregate theft of an amount greater than $20,000.00 and less than $100,000.00 and sentenced to five years= imprisonment.  In this appeal, Blackstock challenges the trial court=s admission of forty-one of the State=s exhibits.  We affirm.

I.  Factual and Procedural History

Blackstock worked for Ralston Drug Stores, Inc.=s Houston warehouse^[1] from July 1985 until June 1999.  Her responsibilities included collecting the cash and checks that Ralston=s delivery drivers received from customers who paid C.O.D. (cash on delivery), filling out deposit slips, placing a completed deposit slip in an envelope with the cash and checks collected, and placing the envelope in the company=s safe to be retrieved and delivered to Ralston=s bank by an armored transport service.  For accounting purposes, Blackstock was also required to place a copy of the deposit slip and the invoices corresponding to the payments in an envelope and give the envelope to a co-worker.  The co-worker then recorded the data in the company=s computer system.

On June 17, 1999, Barbara Pettit, Ralston=s comptroller and office manager, noticed that three deposit slips Blackstock had completed did not appear on the preceding month=s bank statement.^[2] Pettit immediately began reviewing the invoices and documents related to these transactions in order to locate the problem.  Brad Klawitter, the general manager of Ralston=s wholesale division and Blackstock=s immediate supervisor, informed the company=s president, Rick Zapp, of the discrepancy.  On June 18, 1999, Klawitter informed Blackstock that Zapp wanted to meet with her.  Blackstock then left the warehouse and never returned.

After Blackstock=s departure, Mary Ann Zapp^[3] and fraud examiner Judith Golicki spent several months investigating Ralston=s accounting irregularities and reviewing bank statements, invoices, check stubs, and receipts.                            

In February 2003, Blackstock was indicted on a felony charge of aggregate theft for allegedly stealing money from her employer between August 29, 1995, and April 30, 1999. The case was tried to a jury in December 2003.  The prosecution argued that Blackstock had perpetrated what is called a Alapping@ scheme in which Blackstock stole currency and applied checks to the wrong customer=s account in order to conceal the shortage.  The prosecution  argued that such schemes cannot last indefinitely and usually result in the perpetrator making Afake deposits@ such as those allegedly contained in State=s Exhibits 6 and 7.   

Mary Ann Zapp testified that Blackstock stole a total of $59,877.61 from Ralston during this time period, and Judith Golicki testified that Blackstock made $41,485.00 in cash deposits to her personal checking account during the same period. Blackstock testified that the accounting practices and money handling procedures at Ralston were extremely lax and that someone else could have taken the missing currency.  Her husband testified that a truck and a timeshare the couple bought during this period were purchased using his money.

The trial court admitted three sets of exhibits into evidence that are central to the State=s case.  State=s Exhibits 6 and 7 concern the alleged Afake deposits@ made in March 1999.  State=s Exhibits 8B44 are profiles of instances of alleged theft on specific dates, together with supporting documents.  State=s Exhibits 50 and 51 were offered and admitted as exemplars of properly completed accounting paperwork.

With the exception of Exhibits 6 and 7, each exhibit consists of a cover page and annotated Ralston records and is divided into four labeled parts.  Part A is the cover page, and contains a synopsis of the collections and deposits on a particular date as well as comments and descriptions of parts B, C, and D.  In many of these exhibits, Part A also included Mary Ann Zapp=s characterizations, inferences, and other material not found in the underlying documents.^[4] Part B is a copy of that date=s deposit slip, Part C contains the Adaily work@ for the day in question (mostly copies of invoices), and Part D contains the Aaffected part@ of the armored transport company=s paperwork concerning Ralston=s deposits or material from other third parties.  Parts B, C, and D of the exhibits often contain annotations such as checkmarks, highlighting, identification of the method of payment, and calculations.

Blackstock initially objected to the admission of these exhibits on the grounds that they contain hearsay.  In addition, Blackstock objected to Exhibits 6, 8, and 16 on the grounds that they did not constitute business records.  The trial court overruled Blackstock=s objections to Exhibits 6B8, 16, 51, and 52; however, the trial court did not immediately rule on Blackstock=s objection to Exhibits 9B15 and 17B44  and her objection to these exhibits was subsequently abandoned. 

The jury convicted Blackstock of aggregate theft.  Blackstock was sentenced to five years= imprisonment, and this appeal ensued.

II.  Issues Presented

In three issues, Blackstock challenges the admission of State=s Exhibits 6B44, 50, and 51 as summaries under Texas Rule of Evidence 1006.  Specifically, Blackstock argues that the documents purportedly summarized are not business records, and therefore are not admissible.  Consequently, she contends that both the underlying documents and the summary portions of the exhibits should have been excluded.  See Tex. R. Evid. 1006 (allowing the court to admit summaries of voluminous material that is Aotherwise admissible@); Tex. R. Evid. 803(6) (governing admission of business records).  She further argues that the summary sections of the exhibits are inadmissible because they include inferences, notations, and conclusions beyond the scope of the material summarized.

III.  Standard of Review

The admission of evidence is within the discretion of the trial court.  Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990).  A trial court abuses its discretion when it rules without regard for any guiding rules or principles.  Id. at 380 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985)). However, if the trial court=s ruling admitting the evidence falls within the Azone of reasonable disagreement,@ there is no abuse of discretion and we will uphold the ruling.  Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996). 

IV.  Analysis

The issues as framed do not align neatly with Blackstock=s objections in the trial court or her arguments on appeal.  Specifically, she contends that all of the challenged exhibits were improperly admitted as summaries under Texas Rule of Evidence 1006, but this objection was never raised in the trial court.  She further argues that specific parts of the exhibits were inadmissible as summaries or business records, but her objections at trial did not separately address the different parts of the exhibits. 

In order to clarify which objections or arguments have been presented and preserved, if any, we begin by reviewing the objections to the various exhibits.

A.      Basis of Objections

State=s Exhibits 6 and 7 were offered into evidence as examples of alleged Afake deposits@ made in March 1999.  Exhibits 8B44 were offered as evidence of individual acts of theft on specific dates, and Exhibits 50 and 51 were offered as examples of properly completed accounting paperwork.  Although Exhibits 6 and 7 are not formally divided into subparts, they follow the same format found in Exhibits 8B44, and 50B51: a summary page followed by annotated copies of documents. 

Blackstock raised global business record and hearsay objections to Exhibits 8 and 16^[5] and objected and obtained rulings on Exhibits 6, 7, 50, and 51 only on general hearsay grounds.  Each of these objections was overruled.

B.      Abandoned Objections

After State=s Exhibits 8 and 16 were offered into evidence individually and Blackstock=s objections were overruled, the State discussed Exhibits 8B44 in chronological order.  The prosecutor noted that Exhibits 8 and 16 had  already been admitted and offered Exhibits 9B15 and 17B44.  After this offer was made, the following exchange took place:

Defense Counsel:   Well, Judge, same objection.  I=m objecting to hearsay toCthose files contain hearsay.

Court:          You know, I know that you=ve proved them up on these individual ones.  Have you done the grouping yet?

Prosecutor:            I=ll do it again, Judge, if you=d like me to so that we=re clear.  [The prosecution then laid the foundation for admission of all the exhibits as business records.] Tender, Judge.

Defense Counsel:   No objection, Your Honor.

It appears from the record before us that Blackstock initially objected to exhibits 9B15 and 17B44 solely on the basis that the exhibits contained hearsay.  Before the judge ruled on the objection, the State elicited testimony from Mary Ann Zapp that (1) she had prepared and examined each of the exhibits, including their summaries; (2) she exercises care, custody, and control over Ralston=s records; (3) the records were kept in the regular course of Ralston=s business; (4) the records were made by persons with personal knowledge of the events recorded; (5) the entries in the records were made at or near the time of the events recorded; (6) the records are originals or copies of originals; and (7) the exhibits include bank records accompanied by a business records affidavit from Ralston=s bank.  Following this testimony, Blackstock=s trial counsel effectively  withdrew the hearsay objection to Exhibits 9B15 and 17B44.^[6] Because Blackstock failed to obtain a ruling on her objection and subsequently abandoned her objection to  Exhibits 9B15 and 17B44, she has failed to preserve error, if any, in their admission.  See Tex. R. App. P. 33.1(a). 

We overrule Blackstock=s challenge to the admission of State=s Exhibits 9B15 and 17B44 as stated in her first issue.

C.      Admission of Summaries

On appeal, Blackstock states, AThe court overruled the hearsay objections of defense counsel after accepting the State=s view that Part A of each exhibit was a summary within the meaning of Texas Rule of Evidence 1006 and Parts B, C, D, and E [sic] supporting it were business records admissible under Rule 803(6).@  Specifically, she argues that the summaries are inadmissible for two reasons: (a) the underlying business records are inadmissible, and (b) the summaries do not merely summarize the underlying documents, but are the equivalent of an expert=s inadmissible written report. 

1.       Alleged Inadmissibility of the Underlying Business Records

Blackstock objected to Exhibits 8 and 16 on the grounds that they were not Aon file@ as business records, but preserved no similar objection to the remaining exhibits.  Because Blackstock did not raise and preserve objections to the admission of the business records of Exhibits 6, 7, 50, or 51, her arguments that portions of these exhibits are inadmissible as business records are waived.  See Tex. R. App. P. 33.1(a).^[7]

Although her business record objections to Exhibits 8 and 16 are vague, Blackstock arguably raised the objection that the records were not admissible under Texas Rule of Evidence 803(6).  Here, Blackstock contends that Part A of each exhibit was erroneously admitted as a summary under Texas Rule of Evidence 1006.  This Rule allows certain writings and records to be introduced in the form of summaries or charts.  For this Rule to apply, the writings and records must be: (1) so voluminous they cannot be conveniently examined, (2) otherwise admissible, and (3) made available for examination or copying by other parties at a reasonable time and place.  Tex. R. Evid. 1006.  Blackstock does not dispute that the first and third requirements were met; rather, she contends that the documents contained in Parts B, C, and D of the exhibits are not admissible as business records because they contain notations and highlighting added during the investigation of Blackstock=s conduct.^[8] Thus, she argues, because the records were not Aotherwise admissible@ as business records, the summaries of the records are likewise inadmissible.  See id.;  Tex. R. Evid. 803(6).

On the facts before us, we cannot say the trial court abused its discretion in denying Blackstock=s general objections as stated during trial.  Although Blackstock objects to specific subparts of the exhibits on appeal, her objections in the trial court were global, and did not identify or describe the writing or the part of the exhibit that Blackstock believed objectionable.  It is unclear whether many of the markings are part of the original business records or are later additions to preexisting records.  Although Mary Ann Zapp testified that highlighting was a later addition, individual words, symbols, and calculations are more ambiguous.  The handwriting of both Mary Ann Zapp and Blackstock allegedly appear on the documents, and the markings made by Blackstock form a part of the original business record.  Thus, it was Blackstock=s responsibility in the trial court to narrow her objection and identify the material about which she complains on appeal.  See Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985) (A[W]hen an exhibit contains both admissible and inadmissible material, the objection must specifically refer to the material deemed objectionable@).  We do not agree that the trial court abused its discretion in overruling the objections as asserted at trial.

We further disagree with Blackstock=s suggestion that any addition to a preexisting business record necessarily renders the record inadmissible.  In United States Fire Ins. Co. v. Stricklin, 556 S.W.2d 575, 580B81 (Tex. Civ. App.CDallas 1977, writ ref=d n.r.e.), the Fifth Court of Appeals held that the trial court improperly admitted a summary of expenses for repairs to apartments damaged by fire because the records summarized were inadmissible.  Specifically, the court noted that the underlying records were Ainvoices covering repairs made to the entire unit, not just the damaged portion.@  Id. at 581.  An internal code had been added to the invoices long after the repairs were made indicating which repairs were fire-related, but there was no evidence that the markings were (a) placed on the invoices by a person with personal knowledge of the facts, (b) made in the regular course of business, or (c) made at or near the time the repairs were made.  Id.  However, the Texas Supreme Court specifically disapproved the holding that these underlying records were inadmissible.  Stricklin v. United States Fire Ins. Co., 565 S.W.2d 43 (Tex.1978) (per curiam).  Thus, Stricklin suggests that a document is not rendered inadmissible per se as a business record solely because additional notations are later added to the document.  Here, Mary Ann Zapp testified that she added at least some of the notations, she is a custodian of the records, and she assembled or created the exhibits in the usual course of business.  Thus, the business records in the exhibits at issue meet more of the criteria governing the admission of business records than those held admissible in Stricklin.  See Tex. R. Evid. 803(6).^[9]

We overrule Blackstock=s challenge to the admission of the records contained in Parts B, C, and D of Exhibits 8 and 16. Because the trial court did not abuse its discretion in overruling Blackstock=s objection to these records, we likewise overrule Blackstock=s argument that Part A of Exhibits 8 and 16 is not based on Aotherwise admissible@ material, as presented in her second issue.  Finally, we overrule Blackstock=s challenge to the admission of Part A of Exhibits 6, 7, 50, and 51 as encompassed in her first and third issues; having failed to raise and preserve an objection to the admission of the records contained in Parts B, C, and D of these exhibits, her argument that the summary of these records found in Part A is inadmissible is waived.  See Tex. R. App. P. 33.1(a).

2.       Material in Summaries Not Found in the Underlying Business Records

Blackstock=s argument that statements contained in the exhibit summaries exceed the scope of the material summarized is raised for the first time on appeal.  Blackstock did not object at trial to the admission of any part of the exhibits as summaries under Texas Rule of Evidence 1006, but stated global hearsay and business records objections to entire exhibits.^[10] Because her complaint on appeal does not comport with the objection made at the trial court and does not identify the portion of the exhibit about which she now complains, Blackstock has failed to preserve this argument for review.  See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Tex. R. App. P. 33.1(a); see also Brown, 692 S.W.2d at 501; Clark v. Walker-Kurth Lumber Co., 689 S.W.2d 275, 281 (Tex. App.CHouston [1st Dist.] 1985, writ ref=d n.r.e.) (holding that appellant who objected to business records at trial based on lack of personal knowledge Acannot enlarge his complaint on appeal@ to include the argument that the proper predicate was not laid for a summary of the records under Rule 1006).

We overrule Blackstock=s additional challenge to the admission of the summary portions of State=s Exhibits 6B8, 16, 50, and 51 as stated in her first, second, and third issues.     

V. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court.         

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed January 9, 2007.

Panel consists of Justices Anderson, Hudson, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Ralston Drug Stores, Inc., is a family-owned corporation that operates retail liquor stores and delivers liquor to restaurants and night clubs in the Houston area. 

^[2]  At trial, the State referred to these deposit slips as Afake deposits@; they are the subject of State=s Exhibits 6 and 7.  Defense counsel objected to the admission of these exhibits on the basis of hearsay.

^[3]  Mary Ann Zapp is the wife of Rick Zapp, the company=s president.

^[4]  See, e.g., Exhibit 6 (AThe daily deposit reconciliation report was falsified to make it appear that Armored Transport picked up the deposit on March 31, 1999.  This was accomplished using the no-print function on the calculator@); Exhibit 9 (AThis deposit cleared before the deposit for the daily work of August 29, 1995, an indication the suspect was holding deposits@); Exhibit 13 (AThis evidence reveals the lapping scheme Ms. Blackstock was working@); Exhibit 15 (AThe notations written around the copy indicate[] how the daily work was manipulated in order to balance . . . Again, this is evidence of the deposits and checks being held for covering the wrong invoices@); Exhibit 16 (AThere was NO reason why Bristol Hotel would cash a check through Ralston=s.  This is another example of currency missing and a check put through to cover the missing cash@); Exhibit 17 (AThe paper work could not be found, but the customer will testify that it was a CASH transaction@); Exhibit 37 (AThis was Ms. Blackstock=s way of covering the shortage@); Exhibit 41 (AAlso, note the deceptive dates shown on these bank deposits.@).

^[5]  When Exhibit 8 was tendered, Blackstock=s trial counsel objected, stating, AJudge, again, unless these were on file as business records, we would object.  It=s hearsay.@  Defense counsel similarly objected to Exhibit 16, saying AJudge, again, I have the same objection.  They were not on file in the business records.  Object to hearsay.@

^[6]  We do not construe the statement from Blackstock=s trial counsel that there was Ano objection@ to include Exhibits 8 and 16 because these documents were already offered and admitted over Blackstock=s objection.

^[7]  Blackstock=s defense counsel objected to Exhibit 6, stating, AThis contains hearsay.  It was not put in the business records affidavit; and we have the best evidence, which is the actual person here who can testify to whatever her conclusions are.  And there is tons of hearsay in there, and I object to it.@  When the trial court sought clarification, Blackstock=s attorney repeated only the hearsay objection.  It is not clear whether Blackstock intended to assert that the documents are inadmissible under Texas Rule of Evidence 803(6).  If so, this objection to Exhibit 6 was waived for failure to obtain a ruling.  See Tex. R. App. P. 33.1(a).  Blackstock raised no business record objection to State=s Exhibits 7, 50, or 51.

^[8]  The notations on the records of Exhibits 8 and 16 include checkmarks; highlighting; the identification of payors next to records of checks deposited; the identification of collections made by cash, check, or C.O.D.; and calculations.

^[9]  Even assuming that the records at issue were inadmissible, any error in their admission was harmless.  Mary Ann Zapp testified in some detail regarding her investigation of the collections and deposits Blackstock performed on August 29, 1995, and August 28, 1996Cthe dates at issue in Exhibits 8 and 16, respectively.  Not only did she testify that, based on her detailed investigation, Blackstock failed to deposit an aggregate total of $59,877.61, but she specifically testified without objection that the deposits were missing $163.10 on August 29, 1995, and $686.47 on August 28, 1996.  This is the same information contained in greater detail in Exhibits 8 and 16.  Moreover, thirty-five similar exhibits were admitted without a preserved objection. Exhibits 9B15 and 17B44 contain evidence that more than $59,000.00 was stolen, a figure nearly three times the amount needed to support Blackstock=s conviction on the charged offense.

^[10]  As previously indicated, the majority of each of the exhibits consisted of records, not summaries.