Ben Lee Johnson v. State

Citation: Not availableDocket: 12-10-00277-CR

Court: Court of Appeals of Texas; July 13, 2011; Texas; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Ben Lee Johnson, Jr. appeals his conviction for theft, arguing that the trial court incorrectly allowed the admission of two documents—specifically, a complaint and a default judgment from a U.S. Department of Agriculture administrative proceeding—into evidence. The case stems from Johnson's indictment for stealing cattle after he issued a check that was not honored due to insufficient funds. Despite making partial payments toward his debt to Emory Livestock, the State pursued charges resulting in a felony theft indictment.

During the trial, the State attempted to introduce the documents as business records, despite objections from Johnson citing hearsay, since the documents were not certified and the sponsoring witness was not the custodian of the records. The trial court permitted the documents, and the jury ultimately found Johnson guilty, leading to a ten-year prison sentence.

In reviewing the evidentiary admission, the court applied an abuse of discretion standard, indicating that it would only disturb the trial court's ruling if it fell outside reasonable disagreement parameters. Hearsay is defined under Texas rules as statements made outside of court that are offered to prove the truth of the matter. However, public records may be admissible under certain exceptions to the hearsay rule. Domestic public documents can be self-authenticating if they bear a seal.

Certified public records are deemed self-authenticating if certified by the custodian or an authorized individual, as per Tex. R. Evid. 902(4). Records of regularly conducted activity are admissible as an exception to the hearsay rule under Tex. R. Evid. 803(6), provided they meet four criteria: 1) created during regular business activity; 2) it is the regular practice to create such records; 3) made at or near the time of the event; and 4) prepared by someone with knowledge in the regular course of business. 

In this case, the documents submitted by the State were court records lacking a seal or certification. The State did not argue for their admissibility as public records but contended they qualified as records of regularly recorded activity. The appellant objected, claiming irrelevance and hearsay due to insufficient foundation laid for admission. The sponsoring witness, Philip Warren, testified as a custodian of records for the USDA Packers and Stockyards Program, asserting the documents were true copies of originals held in Washington D.C. However, he acknowledged he lacked personal knowledge regarding their authenticity and did not maintain these specific records. Although Warren confirmed he was a custodian of other records, his inability to verify the authenticity of these documents led to the appellant’s renewed objection, which was deemed valid. The court noted that while Rule 803(6) does not necessitate that the witness be the record's creator or possess personal knowledge of its content, they must understand how the record was prepared.

Warren had some knowledge regarding the preparation of the records but did not provide specific details about their creation or maintenance. He testified that he served the order on the Appellant twice but disclaimed personal knowledge of the records' authenticity. His testimony indicated that he did not maintain the documents, though they appeared official, included a signature from his supervisor, and shared a cause number. However, he failed to establish that the records were created in the ordinary course of business or by someone with relevant knowledge, as required by Texas Rule of Evidence 803(6). Consequently, the trial court erred in admitting these documents into evidence due to insufficient foundational support.

Though the admission of hearsay evidence is considered nonconstitutional error, it must be disregarded unless it affects the defendant's substantial rights. The court determined that the error did not substantially influence the jury's verdict. While the Appellant asserted that the jury may not have understood the difference between the criminal action and a federal proceeding, Warren clarified key points, including that the federal action was civil and lacked criminal allegations. He acknowledged the absence of evidence regarding the Appellant's awareness of the hearing or legal representation.

Despite the contested records, substantial evidence of the Appellant's writing of bad checks was presented, including bank statements indicating significant deposits and withdrawals, frequent overdrafts, and related fees. Specifically, the Appellant's October 2007 statement showed over $1.6 million in deposits with nearly equivalent withdrawals, resulting in numerous insufficient fund fees. The November statement reflected over $2.2 million deposited with similar trends, while the December statement indicated over $400,000 in deposits, with consistent overdraft issues.

Evidence presented by the State indicated that the Appellant issued two dishonored checks to an auction business, one for $59,533.55 and another for $126,312.91. A banker testified that the Appellant defaulted on a loan, leading to the foreclosure of 130 head of cattle, although the bank attempted to foreclose on a larger number that could not be located. The Appellant's defense claimed a lack of intent to steal the cattle, attributing the failure to honor the checks to business difficulties. The defense also suggested, with limited evidence, that the bank had failed to uphold an agreement regarding the checks. Despite the Appellant's argument, the court noted substantial evidence of his pattern of overdrawing his account. The inadmissible evidence regarding six other dishonored checks did not significantly impact the jury's decision since the jury was already aware of the Appellant's history of writing large checks on an overdrawn account. The court concluded that the admission of the inadmissible evidence did not affect the Appellant's substantial rights and thus overruled his appeal, affirming the trial court's judgment. The opinion was delivered by Justice Sam Griffith on July 13, 2011, with the panel including Chief Justice Worthen and Justice Hoyle.