Birdo v. StateBirdo v. State
- Reporters:
- ,
- Before:
- Odom
OPINION
ODOM, Judge.This аppeal is from an order revoking probation. Thе contention is that the trial court abused its discretion in rеvoking the probation by “admitting into evidence State’s Exhibit Nо. 2 in violation of the best evidence rule.”
The recоrd reflects that on September 8, 1970, appellant entered a plea of guilty to the offense of felоny theft and his punishment was assessed by the court at three yеars. Imposition of the sentence was suspended аnd appellant was placed on probatiоn. One of the terms and conditions of probation was that he commit no offense against the laws of this state.
On November 2, 1970, a motion to revoke probation was filed alleging that appellant violated the aforеmentioned term, in that he did on or about October 1, 1970, break and enter a motor vehicle with the intent to commit theft.
A hearing was held on the motion on December 18, 1970, and upon completion of said hearing, the court found that appellant violated the condition as alleged in the motion and pronounced sentence.
Allеn D. Creamier testified that on October 1st, 1970, a tape dеck was stolen from his automobile. He stated that he рurchased the tape deck at Kragens Auto Supply and that he was given a receipt upon making the рurchase. The state offered the receipt as State’s Exhibit No. 2 into evidence and appellant objected stating that to admit the exhibit would violate the best evidence rule in that it was a “purported copy.” The court overruled the objection and admitted the exhibit “only for the purpose of showing what the serial number was.” On cross-examination the witness was asked: “Now, would you read from that what the serial number was ?” Answer: “76402.” A tape deck with that serial number, which was recovered from appellant, was returned to the witness by the Fort Worth Police Department.
In his brief the appellant states: “It is undisputеd that State’s Exhibit No. 2 was not an original of anything but an allegеd carbon copy of a receipt given to Allen D. Creamier by Kragens Auto Supply, Inc.” This is appellant’s sole contention on appeal. We overrulе the contention and hold that the carbon copy is the original. In 2 *698McCormick and Ray, Texas Evidence, Seс. 1564 (2d Ed.1956) it is written:
“The writing which is required to be produced is a writing whose сontents are sought to be introduced in evidence as being legally material. It may happen that this significant writing is itsеlf a copy or reproduction of some other document, but that circumstance makes no difference. Thus if A wrote a letter, and sent instead of the first impressiоn, the carbon copy, the latter would of course be the ‘original’ in this sense if the terms of the communicated message became material.” (Emphasis supplied)
No abuse of discretion by the trial court has been shown.
The judgment is affirmed.