James Michael Thompson v. State

Opinion issued May 26, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00084-CR

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James Michael Thompson, Appellant

V.

The State of Texas, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Case No. 1213980

MEMORANDUM OPINION

          A jury found appellant, James Michael Thompson, guilty of the offense of theft.[1]  After finding true the allegations in two enhancement paragraphs that appellant had been twice previously convicted of felony offenses, the jury assessed his punishment at confinement for twenty years.  In one issue, appellant contends that the trial court erred in admitting into evidence, under the business record exception to the hearsay rule, an exhibit containing photocopies of credit receipts and purchase orders.  

          We affirm.

Background

          Guadalupe Martinez, the safety director at Unlimited Trucking (“Unlimited”), testified that Unlimited is a Houston area trucking company that hires owner-operators of vehicles through another company, MTY Trucking (“MTY”), which operates under Unlimited’s license.[2]  Martinez noted that MTY hired appellant as a truck driver in March of 2008, but terminated his employment on April 21, 2008. 

Martinez explained that MTY truck drivers, in accordance with MTY’s policy, do not pay for the diesel fuel for their trucks.  Rather, an MTY truck driver obtains fuel for his truck at T’s Mini Mart, a diesel fuel station, after obtaining a “purchase ticket order” from a MTY dispatcher.  Martinez further explained that the MTY purchase ticket order contains “the vehicle number so that fuel can be deducted from the profits of that vehicle,” the truck driver’s name, and the first four digits of his driver’s license number. After obtaining a purchase ticket order, a truck driver must present it and his driver’s license to a T’s Mini Mart employee who is to verify the first four digits of the driver’s license number and write the last four digits of the driver’s license number on the ticket. After obtaining the fuel for his truck, the driver must return to the T’s Mini Mart employee to obtain a receipt for the fuel purchase.  At the end of each week, a MTY representative gathers the purchase tickets and receipts, and MTY then pays for all of the fuel purchased. 

Martinez further testified that although the employment of appellant was terminated on April 21, 2008, he continued to obtain fuel from T’s Mini Mart using MTY’s purchase ticket orders without the permission of Unlimited or MTY.

The State offered into evidence State’s exhibit number one, which contains eleven photocopied pages, each containing a copy of a purchase ticket order, appearing on the bottom of the page, and a corresponding T’s Mini Mart receipt, appearing on the top of the page.  Appellant’s trial counsel objected to the exhibit on “best evidence” grounds, which the trial court sustained.  After appellant’s trial counsel renewed his “objection as those are not the originals,” the trial court excused the jury, and the court and appellant’s trial counsel had an opportunity to question Martinez as follows:

[Trial Court]:        And do you have these originals back in your office?

[Martinez]:           Yes, sir.

[Trial Court]:        Did the State ask for them?

[Martinez]:           No, sir. They are kept in the administration department.

                             . . . .

[Trial Court]:        So the State knew that you had the originals, but they didn’t ask for them.

[Martinez]:           No, sir.

[Trial Court]:        All they wanted was the copies.  It could have been just as easy to bring in the originals as it was the copies, correct? Someone had to make copies of them.

                             . . . .

[Martinez]:           Judge, I don’t know about just as easy; but, yes, they could have been provided, yes, sir.

. . . .

[Trial Court]:        Okay.  Well, [appellant’s trial counsel] I guess if you are put on the spot to raise a question as to the authenticity. 

[Trial Counsel]:    Judge, I was just wanting to mention if I can have the witness on voir dire for a moment; or if the court would prefer, [the State] indicated that all of these documents were actually prepared by MTY or Unlimited Trucking when, in fact, he then turned around and said the receipts were prepared by someone else.  So I do have a question as to the authenticity, maybe not of the credit card but of whatever they are calling the other receipt that appears on the bottom of the page.  This witness did not prepare that, and this witness doesn’t know who prepared those. Therefore, I do have a question as to the authenticity.

[Trial Court]:        Where did the purchase orders that are contained on each page of the exhibit come from? How would your company end up with those in their possession?

                             . . . .

[Martinez]:           Okay. The bottom part, the bottom ticket is the part that the driver gets, okay. He gets — that is two copies. 

                             . . . .

[Trial Court]:        So the bottom purchase order on each page which is 11 pages of State’s No. 1 . . .  are all purchase orders that belong to MTY?

[Martinez]:           Not necessarily, no, sir.  Those could be purchased at any Office Depot or anything like that.

[Trial Court]:        That is obviously the basis of the objection. 

                             . . . .

[Trial counsel]:     Well, judge since evidently MTY allegedly did not prepare the bottom receipt. Then I do have a question as to the authenticity without seeing the originals. 

[Trial Court]:        I will overrule the objection. It goes to the weight and not the admissibility at this time although the better practice would have been to have to originals.

After the jury returned to the courtroom, the trial court admitted State’s exhibit number one into evidence.  The records contained in State’s exhibit number one reveal that from May 16, 2008 through May 25, 2008 appellant obtained a total of $7,756.27 worth of diesel fuel that was paid for by MTY. 

Waiver

In his sole issue, appellant argues that the trial court erred in admitting into evidence an exhibit that included copies of eleven credit receipts and purchase ticket orders as business records because Martinez “did not know who prepared the bottom record nor could he testify that the record was in fact a MTY ticket.”  He argues that the record was not admissible under the business record exception to the hearsay rule because Martinez did not “have knowledge of how the record was prepared.”  See Tex. R. Evid. 803(6).  He further asserts that the trial court’s “determination that the issue surrounding the exhibit went to its weight rather than its admissibility was arbitrary and unreasonable.”

The State argues that appellant has not preserved this issue for our review.  To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling he desires the court to make if the specific grounds are not apparent from the context.  Tex. R. App. P. 33.1(a)(1)(A).  

It is well established that the ground of error presented on appeal must comport with the objection raised at trial; otherwise nothing is presented for review.  Crocker v. State, 573 S.W.2d 190, 205 (Tex. Crim. App. 1978); see Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (holding that point of error on appeal must comport with objection at trial); Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) (stating that appellate court cannot reverse on legal theory not presented to trial court by complaining party).  If an objection made in the trial court differs from the complaint made on appeal, an appellant has not preserved any error for review.  Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986).  The record must show that the complaining party gave the trial court an opportunity to rule on the complaint by presenting that complaint to the trial court in a specific and timely objection.  See Tex. R. App. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Further, making the trial court aware of the complaint requires that both the grounds and what is being objected to be apparent.  See Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. 1980) (op. on reh’g).

At trial, appellant argued that the exhibit was inadmissible because it did not contain the originals.  Appellant then renewed his objection “under the best evidence rule.” The trial court initially sustained appellant’s objection.  After the trial court allowed further testimony, appellant again renewed his objection stating, “those are not the originals.”  The trial court dismissed the jury and heard additional testimony concerning the location of the original documents and how they were created.  On appeal, appellant now argues that the trial court erred in admitting the exhibit as a business record under rule 803(6) because Martinez “did not know who prepared the bottom record nor could he testify that the record was in fact a MTY ticket.”  He further argues that the business record was inadmissible because “the circumstances surrounding its preparation indicate a lack of trustworthiness.”  However, appellant did not object at the trial court that the exhibit was inadmissible hearsay and should not be admitted under rule 803(6) because the State did not lay the proper predicate.  Rather, he simply argued that it was necessary to have the originals in order to prove authenticity. 

Because appellant did not give the trial court the opportunity to consider the inadmissibility of the evidence for failing to comply with rule 803(6), he may not now complain about it on appeal.  We will not reverse a trial court’s evidentiary ruling on a theory of admissibility or inadmissibility not raised at trial.  See Martinez, 91 S.W.3d at 336; Kuecker v. State, No. 01-07-00016-CR, 2008 WL 1747692, at * 4 (Tex. App.—Houston [1st Dist.] Apr. 17, 2008, no pet.) (mem. op.). Because his objection at trial differs from his complaint on appeal, appellant has failed to preserve error.  Thomas, 723 S.W.2d at 700. 

We overrule appellant’s sole issue. 

Conclusion

          We affirm the judgment of the trial court. 

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Higley, and Brown.

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

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[1]           See Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2008). 

[2]           Martinez noted that he would consider himself an employee of MTY as well.