Hernandez, Valentin Junior, PD-0246-15

Valentin Junior Hernandez was convicted by a jury of aggravated robbery with a deadly weapon in two consolidated cases; sentences of 15 and 20 years were imposed and affirmed by the Court of Appeals for the Fifth District.
At the punishment phase, Officer Cory Cook testified about prior contacts with Hernandez and about Carrollton Police Department "gang cards" documenting those contacts.
The gang cards were neither produced nor admitted into evidence, and Cook was not shown to be their custodian or that they were business records.
Defense counsel objected under the best evidence rule when Cook testified to the contents of the gang cards; the trial court overruled the objection and allowed Cook to relate the cards’ contents from memory.
On appeal Hernandez argued the Court of Appeals erred in holding the best evidence rule did not apply to testimony about the contents of the gang cards; the Fifth District affirmed the convictions.

Issue	Plaintiff's Argument (Hernandez)	Defendant's Argument (State)	Held
Does the best evidence rule (Tex. R. Evid. 1002) apply when a witness testifies to the contents of a document that is not produced or admitted?	The best evidence rule applies because the testimony was offered to prove the contents of the gang cards and the originals should have been produced to prevent misrepresentation and allow inspection/impeachment.	The rule does not apply where the item was not offered/ admitted to prove its contents (and the courts below treated the testimony as non-documentary or not subject to 1002).	Court of Appeals: Held the best evidence rule did not apply; affirmed trial court’s overruling of the objection.
Were the gang cards merely collateral such that the best evidence rule would not bar testimony about their contents?	The gang-card contents were directly at issue (gang affiliation and prior contacts), not collateral, so 1002 should bar parol testimony of their contents.	The State (and Court of Appeals) treated the information as background/collateral to officer testimony and thus not within rule’s bar.	Court of Appeals: Treated the material as collateral/background and did not apply the best evidence rule.

Englund v. State, 946 S.W.2d 64 (Tex. Crim. App. 1997) (explains policy rationales for the best evidence rule—accuracy, fraud prevention, and ability to inspect originals)
Overton v. State, 490 S.W.2d 556 (Tex. Crim. App. 1973) (articulates that Rule 1002 applies when evidence is offered to prove the contents of a writing)
Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986) (best evidence rule analysis where neither transcript nor recording was offered in evidence; held rule did not apply under those facts)
Ramsey v. Jones Enterprises, 810 S.W.2d 902 (Tex. App.—Beaumont 1991) (reversed admission of testimony about document contents where originals were not produced and rule applied)
Ali v. State, 26 S.W.3d 82 (Tex. App.—Waco 2000) (discusses collaterality—best evidence rule does not apply when document and contents are collateral to the matters in controversy)