Mohammed Haq v. State

Opinion issued May 7, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-01057-CR
———————————
MOHAMMED HAQ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 1305365
OPINION
A jury convicted appellant, Mohammed Haq, of the state-jail-felony offense
of credit card abuse. 1 The trial court assessed punishment at ten months’
1
See TEX. PENAL CODE ANN. § 32.31(b)(8) (Vernon 2011) (providing that person
commits offense if he possesses credit card with intent to use it without effective
consent of cardholder).
confinement. In two issues, appellant contends that the trial court erroneously
admitted (1) a receipt of the alleged unauthorized credit-card transaction, and
(2) two photo-arrays shown to witnesses.
We affirm.
Background
James Jordan, the complainant, testified that he lost his wallet around the
beginning of September 2009. When he called his credit card companies to notify
them, he discovered that several charges had been made to his cards. Jordan then
went to some of the locations where the charges had been made to see if the sales
associates could remember the person who “fraudulently used [his] credit card.”
One of those locations was an auto-parts shop. Jordan told the workers that he had
found out that someone had used his credit card without his permission, and he
spoke to a man who remembered the transaction. The State showed Jordan a copy
of the receipt from the transaction, which had already been admitted into evidence,
and asked if he could read the signature. Jordan testified that the name was his
name, albeit misspelled, and he confirmed that it was not his signature. He
testified that he did not personally know appellant, and he did not give appellant
permission to use his credit cards.
Andrew Swan testified that on September 1, 2009, he was working as a sales
associate at an O’Reilly Auto Parts in Atascocita. Swan testified that appellant and
2
another man entered the store around 8:30 a.m. and shopped for brake pads.
Appellant used a credit card during the transaction and signed Jordan’s name on
the receipt. Swan obtained appellant’s name during the transaction because
appellant decided to purchase a lifetime warranty, and he provided his own name
and his own telephone number. Swan identified appellant in court as the man with
whom he conducted the transaction. Swan stated that he did not check appellant’s
identification because appellant did not engage in any suspicious activity while in
the store, he “moderately knew what he wanted,” and he gave Swan a name and
phone number for the warranty. He acknowledged that he should have asked for
identification and compared names and signatures on the identification, credit card,
and warranty.
After the transaction had occurred, Jordan spoke with Swan and told him
that someone had used his credit card to purchase parts at the store. Swan searched
through the store’s copies of receipts from past transactions and found the one at
issue. The State showed Swan a copy of the receipt and asked him what it was.
Swan identified it as a sales receipt from O’Reilly Auto Parts. Swan testified that
the receipt is kept in the normal course of business and that he was the one who
generated the receipt, which he could determine because his employee number was
printed on the receipt. Defense counsel objected to admission of the receipt on
hearsay grounds, but the trial court overruled the objection and admitted the
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receipt. The receipt reflects a purchase in the amount of $109.31 and a signature
that looks like “James Jordan.”
On cross-examination, Swan testified that he was not the one who brought
the receipt to trial; instead, it was provided by the district attorney’s office. He
stated that the receipt was generated through a computer and that he was the one
who printed the receipt out. Swan testified that store practice was to give one copy
of each sales receipt to the customer and store another copy of the receipt in a box
under the counter. At the end of each day, employees counted the receipts and
locked them in the office for storage. Swan stated that he had not seen the receipt
since he had to find it for corporate officials shortly after the incident. He stated
that he would not know if any changes had been made to the receipt in the interim
time period. He also acknowledged that he was only a sales associate, and it was
not part of his job duties to maintain the records of the store.
Defense counsel then renewed his objection to the receipt, stating that the
receipt had not “been properly authenticated as a business record.” The trial court
and Swan then had the following exchange outside the presence of the jury:
The Court: First time you’ve seen [the receipt] since all this
happened was when?
[Swan]: I probably say—
The Court: Let me see the document, please. I’m sorry. Probably
say what?
[Swan]: At maximum, three weeks after the incident.
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The Court: No. No. Since then, when is the last time?
[Swan]: I haven’t.
The Court: Okay. You saw it three weeks after the incident and then
when did you see it again?
[Swan]: This part, today.
The Court: Today.
[Swan]: Yes, sir.
The Court: So my question to you is: Can you attest to the fact that
everything on here was what was on there when this
occurred back in 2009; is that—
[State]: September 1st, 2009, Your Honor.
The Court: Or if somebody had taken this receipt or altered it in any
way, would you know that?
[Swan]: Yes, sir. Because all the text is on a dot matrix printer
and not many people use those nowadays.
Swan further informed the trial court that before he saw the receipt at trial he
would not have been able to state whose signature appeared on the receipt, nor
would he have been able to testify to the dollar amount of the purchase or the parts
that were purchased. After questioning Swan, the trial court stated, “My ruling
stands. [Appellant’s] motion’s overruled.”
Swan also testified that during the investigation into the transaction an
officer showed him a photo-array, State’s Exhibit 2. He stated that the officer did
not tell him that he had to pick someone from the photo-array, and the officer did
not tell him whom to select. He testified that he selected someone from the photo-
5
array and that he selected the person from his “visual perception of the gentleman
when he came in [the store].” Defense counsel objected to admission of this
exhibit, stating, “Appropriate foundation predicate has not been laid for the
introduction of this photospread.” The trial court overruled the objection and
admitted the photo-array. Swan identified his signature next to a picture on the
photo-array.
Megan Messinger testified that on September 1, 2009, she was working as a
sales associate at a Kohl’s department store in Atascocita. She testified that
appellant entered the store around 9:00 a.m. with another person and started
shopping. When he checked out, the credit card that appellant used was declined
three times before he successfully used a card supplied by his companion. The
trial court admitted a clip from Kohl’s video surveillance system depicting
appellant’s transaction. Messinger identified appellant in court as the man
involved in the transaction.
The State then questioned Messinger about a photo-array that Harris County
Constable’s Office deputies showed her. Messinger identified the exhibit, State’s
Exhibit 12, as the photo-array that was shown to her shortly after the incident. She
stated that she “[p]icked out the criminal and initialed [her] name.” Messinger
stated that the deputy never told her that she had to pick someone from the photo-
array and that the deputy never told her whom to pick from the photo-array. When
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the State formally offered this exhibit, defense counsel objected, stating, “Proper
predicate foundation has not been established for the entry of this photo lineup.”
The trial court overruled the objection and admitted the photo-array.
The State did not call the deputy who prepared the photo-arrays and showed
the photo-arrays to Swan and Messinger as a witness. This officer had, in the
interim time period, retired from the Constable’s Office.
The jury found appellant guilty of the state-jail-felony offense of credit card
abuse. The trial court subsequently assessed punishment at ten months’
confinement.
Admission of Evidence
In his first issue, appellant contends that the trial court erroneously admitted
the O’Reilly Auto Parts receipt because it constituted inadmissible hearsay.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing
Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)); see also Gallo v.
State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (“The admissibility of a
photograph is within the sound discretion of the trial judge.”). We will not reverse
the trial court’s ruling unless the ruling falls outside the zone of reasonable
disagreement. Torres, 71 S.W.3d at 760; see also Taylor v. State, 268 S.W.3d 571,
7
579 (Tex. Crim. App. 2008) (holding that trial court abuses its discretion only if its
decision is “so clearly wrong as to lie outside the zone within which reasonable
people might disagree”). In applying the abuse of discretion standard, we may not
reverse a trial court’s admissibility decision solely because we disagree with it.
See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not
disturb a trial court’s evidentiary ruling if it is correct on any theory of law
applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.
App. 2009).
B. Whether Credit-Card Receipt Constitutes Inadmissible Hearsay
Hearsay is a statement, other than one made by the declarant while testifying
at trial, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID.
801(d). Generally, hearsay is not admissible except as provided by, among other
rules, the rules of evidence. TEX. R. EVID. 802. The business-records exception
excludes the following from the hearsay rule:
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, or
by affidavit that complies with Rule 902(10), unless the source of
information or the method or circumstances of preparation indicate
lack of trustworthiness.
8
TEX. R. EVID. 803(6); Bell v. State, 176 S.W.3d 90, 92 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref’d). The predicate for the business-records exception thus has
three requirements: (1) the record was made by or from information transmitted by
a person with knowledge of the events or conditions recorded; (2) the record was
made at or near the time of the events or conditions recorded; and (3) it was in the
ordinary course of the reporting entity’s business to make and keep such records.
See TEX. R. EVID. 803(6); Perry v. State, 957 S.W.2d 894, 899 (Tex. App.—
Texarkana 1997, pet. ref’d). The rule does not require that the witness laying the
predicate for admission under this exception be an employee of the company
keeping the record, as long as he has personal knowledge of “the mode of
preparing the record.” Huff v. State, 897 S.W.2d 829, 839 (Tex. App.—Dallas
1995, pet. ref’d); see also Campos v. State, 317 S.W.3d 768, 778 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d) (stating that testifying witness “need only have
knowledge of how the record was prepared”).
Appellant does not argue that a credit-card receipt from a store cannot fall
within the business-records exception. See, e.g., Thomas v. State, 226 S.W.3d 697,
705 (Tex. App.—Corpus Christi 2007, pet. dism’d) (holding that business’s receipt
books fall within business-records exception). Instead, he argues that this
particular receipt should not have been admitted under this exception because the
9
State did not establish the necessary trustworthiness of the document. We
disagree.
Swan testified regarding the sales procedure at O’Reilly Auto Parts. He
stated that when customers purchase a product, the sales associate obtains the
customer’s signature on a computer-generated receipt. The sales associate gives
one copy of the receipt to the customer and retains one copy for the store’s records.
According to Swan, each day’s receipts are stored in a box by the cash register. At
the end of each day, the receipts are counted and stored in the locked business
office. Swan stated that the receipts are made and kept in the normal course of the
store’s business. Swan also testified that he was the sales associate who conducted
this transaction on behalf of O’Reilly Auto Parts and generated the receipt at issue,
which he was able to determine because his particular employee number was
printed on the receipt. Thus, Swan testified that the receipt was made and kept in
the regular course of O’Reilly’s business, that O’Reilly’s regular practice was to
make a record of each transaction by generating a receipt via computer, that he
generated the receipt contemporaneously with the transaction, and that he had
personal knowledge of the transaction and was acting in the regular course of
business when he generated the receipt. See Perry, 957 S.W.2d at 899.
The facts that Swan was not an O’Reilly employee at the time of trial and
that he was not O’Reilly’s records custodian do not affect the admissibility of this
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receipt. See Huff, 897 S.W.2d at 839 (stating that sponsoring witness does not
have to be employee of company keeping record as long as he has personal
knowledge of mode of preparing record). Furthermore, although Swan first stated
that he would not know if changes had been made to the receipt during the time
period between the transaction and the trial, he then stated, in an exchange with the
trial court, that he would be able to make this determination because O’Reilly’s
used a specific type of printer to print its receipts that is not commonly used by
others. 2
We conclude that the trial court reasonably could have determined that the
O’Reilly Auto Parts receipt was sufficiently trustworthy to fall within the business-
records exception. We hold that the trial court did not abuse its discretion in
admitting this exhibit.
We overrule appellant’s first issue.
2
On appeal, appellant argues, “Mr. Swan did not produce the receipt introduced at
trial. He did not bring it with him to court and could not explain how it came into
the possession of the district attorney’s office. In fact, no witness testified as to
how the O’Reilly Auto Parts receipt made it from the store to the possession of the
district attorney’s office.” To the extent appellant argues that the State did not
properly establish a chain of custody for the receipt, we note that we have
previously held that “[a]lthough a showing of chain of custody is required where
there are routine or generally unidentifiable or undistinguishable scientific tests or
analyses, it is not an issue where the items introduced are easily and readily
identifiable.” Edlund v. State, 677 S.W.2d 204, 210 (Tex. App.—Houston [1st
Dist.] 1984, no pet.); see also Hartsfield v. State, 200 S.W.3d 813, 817 (Tex.
App.—Texarkana 2006, pet. ref’d) (“Articles that are easily identifiable and are
substantially unchanged normally do not require the introduction of a chain of
custody.”).
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C. Whether Photo-Arrays Were Properly Authenticated
In his second issue, appellant contends that the trial court erroneously
admitted the photo-arrays shown to Swan and Messinger because these photo-
arrays were not properly authenticated.
Texas Rule of Evidence 901(a) provides that “[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” TEX. R. EVID. 901(a). This rule “does not require the State to
prove anything.” Garner v. State, 939 S.W.2d 802, 805 (Tex. App.—Fort Worth
1997, pet. ref’d) (emphasis in original); see also Silva v. State, 989 S.W.2d 64, 67–
68 (Tex. App.—San Antonio 1998, pet. ref’d) (holding same). Instead, the rule
“requires only a showing that satisfies the trial court that the matter in question is
what the State claims; once that showing is made, the exhibit is admissible.”
Garner, 939 S.W.2d at 805. Evidence may be authenticated or identified by
different methods, including testimony from a witness with knowledge that an item
is what it is claimed to be. TEX. R. EVID. 901(b)(1); Dossett v. State, 216 S.W.3d
7, 17 (Tex. App.—San Antonio 2006, pet. ref’d); Martinez v. State, 186 S.W.3d
59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). “Articles that are easily
identifiable and are substantially unchanged normally do not require the
introduction of a chain of custody. If the item has distinct or unique
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characteristics, a witness may authenticate it by testifying that he or she has
previously seen the item at the relevant time and place and that the witness
recognizes it by its distinctive characteristics.” Hartsfield v. State, 200 S.W.3d
813, 817–18 (Tex. App.—Texarkana 2006, pet. ref’d) (citing Outland v. State, 810
S.W.2d 474, 475 (Tex. App.—Fort Worth 1991, pet. ref’d) and Mendoza v. State,
69 S.W.3d 628, 631 (Tex. App.—Corpus Christi 2002, pet. ref’d)).
At trial, defense counsel objected to the introduction of the photo-arrays
shown to Swan and Messinger on the ground that the State had not established the
appropriate predicate for admission of the photo-arrays. Defense counsel did not
elaborate or specifically explain what he thought the State had failed to prove. On
appeal, defense counsel argues, in contending that the photo-arrays were not
properly authenticated, that the State did not call the officer who generated the
photo-arrays and showed them to Swan and Messinger as a witness; the State
presented no testimony as to how this officer generated the photo-arrays; the State
did not produce the original photo-arrays; no one testified how the district
attorney’s office obtained the photo-arrays; no one testified that the photo-arrays
were unaltered; the photo-arrays were not established as a business or public
record “for hearsay purposes”; and it was not established that the photograph of
appellant used in the photo-arrays was a fair and accurate representation of him at
any time. Appellant also cites the United States Supreme Court’s decision in Neil
13
v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972), for the proposition that courts must
consider five factors in evaluating the likelihood of misidentification when a
witness is shown a photo-array. 3
First, to the extent that appellant contends on appeal that the trial court erred
in admitting the photo-arrays because they constitute inadmissible hearsay, they
were impermissibly suggestive, and they did not contain a “fair and accurate
representation” of appellant, appellant has not preserved these complaints for
appellate review because he failed to object in the trial court on these grounds. See
Perry v. State, 703 S.W.2d 668, 671 (Tex. Crim. App. 1986) (requiring defendant
to object to out-of-court identification procedure before trial court to preserve
error); Rodriguez v. State, 975 S.W.2d 667, 673 (Tex. App.—Texarkana 1998, pet.
ref’d) (holding same); Tapia v. State, 933 S.W.2d 631, 633 (Tex. App.—Dallas
1996, pet. ref’d) (“A party must make a timely and specific objection to hearsay to
preserve a complaint for appellate review.”). Furthermore, both the Court of
Criminal Appeals and this Court have previously held that the Biggers factors cited
by appellant need only be considered once a determination has been made that the
relevant out-of-court identification procedure was impermissibly suggestive, which
3
These factors include: (1) the witness’s opportunity to view the criminal at the
time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the
witness’s prior descriptions of the criminal; (4) the level of certainty demonstrated
by the witness at the time of identification; and (5) the length of time between the
crime and identification. See Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct.
375, 382 (1972).
14
is not an issue in this appeal. See Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim.
App. 1995); Rios v. State, 263 S.W.3d 1, 9 (Tex. App.—Houston [1st Dist.] 2005,
pet. dism’d, untimely filed).
Second, appellant cites no authority for the proposition that only the officer
who either prepared the photo-array or showed the photo-array to the witnesses can
properly authenticate the photo-array, nor does appellant cite any authority for the
proposition that testimony concerning how the photo-array was generated is
necessary to authenticate the photo-array. Instead, to properly authenticate the
photo-arrays, the State need only present evidence sufficient to support a finding
that the photo-arrays are what the State claims them to be, e.g., the photo-arrays
shown to Swan and Messinger for the purpose of identifying the user of James
Jordan’s credit card. See TEX. R. EVID. 901(a); Garner, 939 S.W.2d at 805. This
may be accomplished by the testimony of Swan and Messinger, witnesses who
have knowledge that the exhibits in question are what the State claims them to be.
TEX. R. EVID. 901(b)(1); Dossett, 216 S.W.3d at 17; Martinez, 186 S.W.3d at 62.
Here, Swan and Messinger identified State’s Exhibit 2 and State’s Exhibit
12, respectively, as the photo-arrays shown to them by a Harris County
Constable’s Office deputy. They both identified their signatures next to the picture
that they had selected. See Hartsfield, 200 S.W.3d at 818 (stating that witness may
authenticate exhibit by testifying that he or she saw exhibit at earlier time and
15
recognized it by distinctive characteristic). This testimony is sufficient to satisfy
the trial court that the exhibits were what the State claimed them to be—the photo-
arrays shown to Swan and Messinger. See TEX. R. EVID. 901; Garner, 939 S.W.2d
at 805.
We hold that the trial court did not abuse its discretion in admitting the
photo-arrays shown to Swan and Messinger.
We overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
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