445 S.W.3d 330
Tex. App.2013Background
- Mohammed Haq was convicted of the state-jail felony of credit card abuse after a jury trial in Harris County, Texas.
- The State admitted into evidence an O’Reilly Auto Parts receipt showing a signature resembling James Jordan, which the owner identified as fraudulent use of Jordan’s card.
- Andrew Swan, an O’Reilly employee, testified that Haq used Jordan’s name and signature during a purchase and that Swan generated the receipt.
- Swan admitted the defendant’s signature and dollar amount on the receipt could be authenticated by his knowledge of the transaction, though he did not maintain the records personally at the time.
- Witnesses also identified a photo-array (State’s Exhibit 2) shown to Swan, and another photo-array (State’s Exhibit 12) shown to Megan Messinger, both used to identify the user of Jordan’s card.
- Defense objections focused on authentication and foundation for the business-records admission and the photo-arrays; the trial court admitted both the receipt and the photo-arrays, and Haq was convicted and sentenced to ten months’ confinement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the O’Reilly receipt was admissible as a business record | Receipt fits business-records exception under Rule 803(6). | Receipt lacked trustworthy authentication for business-records exception. | Receipt admissible; not abuse of discretion. |
| Whether the photo-arrays were properly authenticated | Swan and Messinger correctly authenticated the arrays by recognizing them and identifying witnesses’ signatures. | No proper predicate; lack of foundation and missing custodian testimony. | Photo-arrays properly authenticated; admissible. |
Key Cases Cited
- Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002) (abuse-of-discretion review for evidentiary rulings)
- Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001) (standard of admissibility review)
- Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007) (admissibility of photographs within trial court's discretion)
- Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008) (abuse-of-discretion standard for evidentiary rulings)
- De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) (admission analysis and alternative theories of law)
- Perry v. State, 957 S.W.2d 899 (Tex. App.—Texarkana 1997) (business-records foundation and witness knowledge)
- Huff v. State, 897 S.W.2d 829 (Tex. App.—Dallas 1995) (supporting predicate for business-records exception)
- Campos v. State, 317 S.W.3d 768 (Tex. App.—Houston [1st Dist.] 2010) (non-employee sponsor can lay predicate for business records)
- Barley v. State, 906 S.W.2d 27 (Tex. Crim. App. 1995) (Biggers factors not required unless identification is impermissibly suggestive)
- Rios v. State, 263 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2005) (Biggers factors discussion in context of identification)
- Edlund v. State, 677 S.W.2d 204 (Tex. App.—Houston [1st Dist.] 1984) (chain of custody not required for easily identifiable items)
- Hartsfield v. State, 200 S.W.3d 813 (Tex. App.—Texarkana 2006) (authentication by distinctive characteristics acceptable)
- Outland v. State, 810 S.W.2d 474 (Tex. App.—Fort Worth 1991) (identification by recognition of distinctive traits)
- Mendoza v. State, 69 S.W.3d 628 (Tex. App.—Corpus Christi 2002) (authentication principles for photos)
- Neil v. Biggers, 409 U.S. 188 (U.S. 1972) (five-factor test for likelihood of misidentification)