*1 stolen, (1913), examples the same theretofore been and for charge as it you if have a doubt as to reasonable should have been given. whether Defendant such received judgment should be reversed.
property fraudulently, or as to whether the Defendant knew at the he re- time ODOM, J., joins in Part I of this dissent. same, did, if prop- ceived that such stolen, erty had been then theretofore
you acquit (Empha- will the Defendant.” added.)
sis requested charge in Cozby follows above; is, guidelines outlined that it theory
states the defensive affirmatively,
using language: you direct “If believe you acquit
. will the Defendant.” GASSETT, Appellant, William Parma given Similarly, charge Cozby in negative presents theory defensive in Texas, Appellee. The STATE of emphasize which unduly terms the State’s “ No. 49599. theory the case: . . cannot you you convict the Defendant unless find and Appeals Court Criminal of Texas. ” believe . . . 21, Jan. 1976. In this case the raised State’s evidence the issue whether the homicide com- 11, Rehearing Denied Feb. by person mitted acts of other than appellant. Accordingly, the appellant timely
made objection to the court’s
charge “to for its failure instruct for ac-
quittal if the finds the death by
the deceased was caused the independent person.”
act of a third objec-
The trial court responded to this by giving confusing seemingly
tion and
contradictory charge reproduced which is concurring .opinion original submis- appellant objected
sion. The then charge. this
form of charge given this strongly case charge Cozby, only
resembles not negative emphasis, capacity
its in its but
creating jur- confusion in the minds of the implying
ors them trial
judge favored the view of the case. State’s State,
Reynolds v. supra; McLaughlin
State, supra. charge request- Similarly,
ed is in form appellant here Cozby.
endorsed the Court It should given;
have the failure to do so was been
reversible error. Burkhalter v. 336, (1916), Tex.Cr.R. S.W. 71 Tex.Cr.R. S.W.
Ward v. *2 Dallas,
tys., Jim Vollers, D. Atty., State’s McAngus, David Asst. S. State’s Atty., Aus- tin, for the State.
OPINION ROBERTS, Judge. appeal
This is an from a conviction for murder with malice under Arts. 1256 and 1257, V.A.P.C. Trial was before a the jury punishment assessed a of seven years’ imprisonment. grew
This murder out of a family dis- pute. The deceased was a former husband appellant’s wife and had waged a long, successful, and finally battle for cus- tody of couple’s children. The evidence showed, however, that appellant’s wife was illegally retaining custody of one of the children, and this prompted the deceased to make periodic trips into her neighborhood to search signs for of the child. Appellant killed the former husband on one of these periodic surveillance trips into neighborhood. The put great defense stock showing the deceased to have a bad reputation as a husband and a Ap- father. pellant’s wife testified that had been or arrested indicted for desertion non-support Dallas, or Odessa, and Clo- vis, rebuttal, New Mexico. the State adduced evidence wife was a bad mother. The State also attempted to prove that the deceased did not have the criminal record testified to his former wife. connection,
In this the State called an investigator from the Dallas district attor- ney’s office who offered that the National Criminal (N.C. Information Center I.C.) computer revealed no record of arrests or indictments concerning the deceased. Appellant objected to this testimony on grounds that it was hearsay and the proper predicate had not been laid. appeal, In this appellant contends proffered that the testi- Martin, Dallas, Jim appellant. mony, finally which came in over his nu- Wade, Henry Atty. Dist. and Richard W. thorough objections, merous and was hear- Lucas, Hugh Wilhelm and Asst. Dist. At- say not within exceptions 3737e, a record or or V.T. memorandum and provided by Arts. 3731a would seem rule to control the situation at bar. The only C.A. prerequisite stated in 3 to the introduc our attention to Sec. Appellant calls testimony showing tion of such the non-ex 3731a, admissibility governs which 5 of Art. event, act, istence of an or condition is that to the effect that no written statements act, event, judge must find that such or *3 note, specified tenor exists. We record of condition would otherwise be recorded and however, was of that no written record preserved ordinary in the course of business the or admitted into evi by fered State or in question. at near the time Presuma Thus, provisions of by the court. dence bly testimony contemplated 3 Sec. obviously do not authorize the admis 5 Sec. “entrant, given by should be custodian evidence. The witness offered sion this qualified or other witness” mentioned in oral as to the contents of the Sec. 2. showing the computer print-out N.C.I.C. any arrests or non-existence of indictments. bar, the case at the witness did In methods permits Art. 3731a other 6 of Sec. not show that the arrests and indictments entry in an lack of an official proving which he said did not exist would otherwise by statutory or deci- if authorized record have been in the in computer entered law. sional law ordinary course of enforcement busi parol offer constituted com- The witness’s proof, ness. Without such Whether or not it came hearsay. law mon probative would have no value at all. See statutory exception to the hear- within the Georgia, (9th 420 U. S. v. De F.2d 889 Cir. question of business records is a say rule for 1969). discussing In the N.C.I.C. and other fact, in this Court. our impression first computer systems, it has been said: has revealed no case in which research major problems “The of the developing 3737e, has construed Art. Sec. Texas court crime data networks are ones of control- 3, V.T.C.A., to this case. applicable the law ling accuracy, accessibility, scope and provision in the comparable is there a Nor uses of crime information. Much act. “business records as evidence” federal basic data in such systems consists of U.S.C., 28 1732. Sec. records, police reports, local arrest rap 3737e, Y.T.C.A., sets out Art. sheets, and court records which are often well-recognized excep “business records” incomplete. inaccurate and In- ... rule. Subsection 1 tion to complete information—recording per- prerequisites three to the in thereof states subsequent son’s indictment without his troduction of memorandum: time knowledge of its employee or regular question. a relevant business record or representative course of (a) contents, (c) it must record or memoran business, (b) by an have been made with at or personal near acquittal, draw an outdated warrant—could innocent ups and interrogations. parties [*] instance, to ¾: continued or n failing n police to with- subject pick- [*] entrant, centralized by the custo Crime records in a data net- may be offered dum witness, may subjected tampering even work to or dian, qualified or other accidental destruction. . . . ‘data personal knowledge lack though may 3737e, intentionally destroy saboteurs’ could or Lumpkin Art. Sec. its contents. (Tex.Cr.App.1975). computer particular obfuscate the files on S.W.2d purposefully criminals or introduce false broadly enough defined “Business” is parties information on innocent into the agen enforcement 4 to include the law system. Poorly computer opera- trained involved herein. Coulter cies illdesigned systems might tors inad- or (Tex.Cr.App.1973). Section vertently ‘dump’ of such vital data records.” testimony as to the absence permits were murder without malice and Katzenbach, de B. and Richard self-de- Nicholas fense. The marital Tome, custody disputes Data Use Crime Centers: W. between the deceased and Detection wife Computers Crime Prevention, Rights integral part Human were an of the events leading 4 Colum. wife, (1972). killing. Appellant’s to this L.Rev. 52-53 whose credibility severely impugned by law enforcement officials The chance erroneously-admitted testimony, was one of Mexico, Clovis, New failed to in Odessa and only main witnesses. The other charges on arrests of and enter information instance in the record in which the State It against deceased is not insubstantial. hinted that the deceased had no criminal has was not even shown N.C.I.C. objected appel- record was also terminals or computer Odessa Clovis. investigator lant. And an for the district probative value of the witness’ testimo *4 attorney’s apparently quoting office from ny open question. is thus to serious See print-out computer an N.C.I.C. would be (Tex.Cr. Romero v. respectability. clothed with much indicia of App.1973) expressions of similar concern beyond We are unable to conclude a reason- reliability polygraph examina about complained that the error doubt able tions. affected could not have the verdict in this witness, investigator an The for the dis- case. office, attorney’s trict stated that the “nor- The conviction is reversed and the cause computer mal custodian” of the N.C.I.C. remanded. employee terminal was an of the sheriff’s department print-out who had initialed the MORRISON, Judge (dissenting). testifying.
from which the witness was It appear would then that he was not my opinion I dissent to brother Roberts’ contemplated by “entrant or custodian” reversing this conviction on the basis of an although judge might have found Sec. incomplete predicate under 3 of Article “qualified that he was an otherwise wit- 3737e, V.T.C.A. give testimony. ness” to This conclu- testimony The showed that the witness supported by sion would be the fact that personal knowledge had of the existence of regular the witness had access N.C. entry terminal in Odessa and the into terminal, computer understood how the I.C. of all N.C.I.C. records arrests Odessa. worked, computer system N.C.I.C. County He testified that Dallas also had a operate knew how to the terminal fixture computer print- terminal and the N.C.I.C. in the sheriff’s office. Railroad Com- morning he was created in out received Company, mission v. Pacific Southern the normal course of business. He stated (Tex.Civ.App.1971) for a discus- that he had searched the records in the requirements quali- sion of for “other County attorney’s district office Dallas prerequi- as well fied as other witness[es]” complaints all in criminal actions filed in sites to the introduction of such electronic County Dallas since 1920. He also searched However, apparent records. it is the records in the identification division of part predi- did not adduce that of the State Office, County the Dallas Sheriff’s where specifically cate called for Sec. 3. persons on records are communicated who not comply witness’ therefore did anywhere country. are arrested in the nothing with the statute and amounted to said, what been stating Without had hearsay. more than rank police testified that he had contacted the Clovis, the harmful department It remains to consider and records bureau in Appellant’s this error. defense re New Mexico. the basis of ness of On this testimo- ny, bad heavily proving knowledge lied on deceased’s witness stated had no issues primary character. The defensive arrests for the deceased. circumstances, these the failure to The majority Under reverses this conviction be- are prove that arrests entered N.C.I.C. cause of the admission of testimony offered regular in the course of business in records the State in its attempt to rebut Mexico, Clovis, harmless New error. testimony given by the appellant’s wife con- cerning the deceased’s criminal record. The judgment should be affirmed. State called an investigator from the dis- attorney’s
trict office who testified that he DOUGLAS, had received a Judge (dissenting). computer print-out from the National Criminal (N.C. Information Center George Appellant killed Dr. Bob Sollock I.C.) showing that the Center had no record July on 1973. Before homicide there of arrests or indictments relating to the developed dispute between the de- appellant objected deceased. The to this ex-wife, subsequently ceased and grounds on the that it was based wife, concerning custody hearsay, proper that no predicate had marriage. the children of their one of been for the laid introduction of the wit- gained of the child after a deceased ness’ testimony and that the witness was County trial in Dallas but not the custodian of the N.C.I.C. records. wife left town with the child and went to parts country to circumvent various It should not be necessary to decide if the the court order. testimony came within the business record *5 evening shooting, the Dr. On Sol- exception hearsay rule as set out in the appellant’s lock and his wife drove to 3737e, V.T.C.A., Article specifically, [more neighborhood they to see if could find the dealing Section 3 of Article 3737e with tes- they passed they As a where child. house timony any as to the absence of record or parked, they the truck had seen testimony This was intro- memorandum]. get into truck and follow them saw him his duced to rebut the wife’s testi- headlights with the truck’s turned off. He mony concerning the indictment and arrest a followed them for short while before he of the deceased for criminal desertion. The them, lights passing turned the on. After testimony wife’s itself was not properly ad- appellant stopped his truck in front of State, Morgan mitted. v. way them in such a as to force them to the (Tex.Cr.App.1974), this Court held that it curb. He left his truck and walked toward proper was not for a witness testify to couple’s car with a gun his hand. As another was convicted without the records car, approached the deceased reached being introduced. Her about in- derringer under the car seat for a that he nothing dictments had to with any do de- car, Appellant kept there. reached fensive issue in this case. The witness Mes- pointed gun at the deceased’s head and appellant sick testified that said that he had get to out of the car. dared the deceased snooping seen a man around his property holding his car got The deceased out of and he chased him and shot the son-of-a- appellant behind him and told the derringer Appellant bitch. made a similar statement gun point also. At that that he had to an officer before he was arrested. After the deceased in the chest. appellant shot appellant testified he stated that he shot self-defense, Dr. in- Messick, Sollock court by appel- called Roy witness structed the on self-defense. The trial lant, watching appellant’s he was testified judge very patient permitting evi- prevent burglaries. to He testified house dence of several trials involving and when that he heard a knock on door “Roy, caught children of the deceased. If there were opened appellant it said: I they indictments were my property snooping around and immaterial a man objection issue in the him down here and then shot the case. There was no I chased being impeached upon that the witness was son-of-a-bitch.”
333 points appellant matter and immaterial an his brief.
this out al., Appellants, Franklin D. MOORE et v. or misconduct acts of violence Prior of the violent character show which Texas, Appellee. of The STATE limited in certain can be admitted deceased No. 50676. State, 504 S.W.2d Nichols v. circumstances. case, how In this (Tex.Cr.App.1974). Texas. Appeals of Criminal of Court intro ever, sought to be prior record 21, Jan. nature not show the violent would duced non desertion or the deceased. Criminal as crimes cannot characterized
support crimes, them Such in and of
of violence.
selves, not be indicate that the could said to aggressor time of was the at the
deceased admissible. killing should not be State, 251, 147 v. 141 Tex.Cr.R. Jackson
See (1941). if the arrest Even
S.W.2d did show the violent nature
indictment required more would be proof than
way of Tex. wife. See Everhart (1950). Mor
Cr.R. S.W.2d 637 State, supra.
gan lack probative
In view of the value testimony,
the wife’s Mendoza v. (Tex.Cr.App.1975), and the *6 testimony dealing
amount of other with the
violent character Joan father,
Gassett’s admission of the testi- concerning
mony computer print-out, if
error, was harmless Warren v. error. See (Tex.Cr.App.1974).1 testimony re- wife was daughter her own daughter.
butted that Dr. a man of
testified Sollock was not character but that her mother was.
violent error, judg- being no
There reversible
ment should affirmed. jury $160 that he wife of the deceased for because he admission 1.The hearing required present Appellant to be followed the at killed the deceased. deceased, Ap- involving him. the murder case and he missed curbed his car and shot day driving a This is included to pellant ended the truck. testified Appel- it to show the deceased. show what had before when killed matter a bill to the error. that he sent harmless also admitted lant