OPINION
James E. Perry was convicted of criminal nonsupport. A jury found him guilty and set his punishment at two years in a state jail facility. The conviction is affirmed.
Perry and his wife were divorced on September 13, 1991. In the divorce decree, Perry was ordered to pay $300.00 a month child support for the care of his son. The State alleged that Perry did not make any of the payments, and the grand jury indicted him for criminal nonsupport.
The State called two witnesses. The first was a child support enforcement officer for the Attorney General. Through this witness the State offered and the court admitted three exhibits into evidence and elicited testimony from the witness based on those exhibits. The first exhibit was the state registry for child support payments, and it was admitted without objection. This registry stated that no payments had been received from *896 Perry. The second exhibit was Perry’s divorce decree, and it was also admitted without objection. The third exhibit was a calculation summary of child support that had accrued and payments that were due. It was a list of all the unpaid dates when Perry’s child support payments were due and the amounts due, with a total of the unpaid installments at the bottom of the exhibit. The officer testified that she created the exhibit, and she testified to all the required business records predicate questions. Perry objected to this exhibit on the ground that it was hearsay. The trial court overruled the objection. The State then elicited testimony from the officer that Perry was $16,650.00 in arrears, which was based on the figures in State’s exhibit number three. On cross-examination the officer stated that, in creating the exhibit, she reviewed records other than those in her control. At this point, Perry objected to the officer’s entire testimony and evidence offered through her because her work was based on hearsay and an investigation of records for which she was not the custodian. Alternatively, Perry objected that the officer’s testimony and the evidence presented through her testimony violated his right to confront and cross-examine witnesses against him. The trial court overruled these objections.
The State’s second witness was Perry’s ex-wife. She testified that she had not received any child support payments from either the Harris County child support system or from Perry himself. Further, she testified that she believed that Perry intentionally or knowingly failed to make the required support payments.
Perry’s sole argument in this appeal is that the trial court erred in admitting the testimony of the child support officer and the documents presented through her testimony because they were based on documents over which she did not have custodial authority.
A threshold question is whether Perry preserved his complaint for review. To preserve error for review, a party must make a timely and specific objection that is followed by an adverse ruling. Tex.R.App. P. 33.1 (formerly Tex.R.App. P. 52(a));
Ramirez v. State,
Before the trial court admitted State’s exhibit number three, Perry objected to it and took the officer on voir dire. The officer admitted that in preparing State’s exhibit three she based some of her information on records and court files over which she had no custodial control. Based on this revelation Perry objected to the exhibit as hearsay, and the trial court overruled. Subsequently, the prosecutor asked the officer how far in arrears Perry was in his child support payments. The officer answered that Perry was $16,650.00 in arrears. Perry did not object. Thus, Perry did not object to the question and answer that contained the whole point of the calculation summary report. A party desiring to complain about particular evidence must object each time that evidence is offered, or the objection is waived.
Moyer v. State,
Even if Perry had preserved his complaint, the trial court did not err in admitting the calculation summary report. Generally, hearsay is not admissible unless it comes within an exception prescribed by statute or the Texas Rules of Evidence. Tex.R.Crim. Evid. 802. The trial court is the intended
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arbiter of whether hearsay is admissible under the exceptions to the general rule of exclusion of hearsay.
Coffin v. State,
Hearsay is any out-of-court statement offered in evidence to prove the truth of the matter asserted. Tex.R.Crim. Evid. 801(d). State’s exhibit number three is a calculation summary report created by the child support enforcement officer, which calculates the total arrearage that Perry owes for his child support. This exhibit is a statement prepared by the officer while she was not testifying, and it was offered to prove the truth of the matter asserted, i.e., that Perry is behind in his support payments by $16,650.00. Consequently, the report is hearsay, and to be admissible it must fall under one of the exceptions to the hearsay rule.
The State argues that the report falls under the exception for records of regularly conducted activity. Tex.R.CRIm. Evid. 803(6). Evidence admissible under this rule, however, may still be inadmissible if it does not meet the requirements of Tex.R.Crim. Evid. 803(8). In other words, if a public record is inadmissable against a defendant due to the limitations of Rule 803(8)(B) or (C), then the record may not alternatively be admitted under Rule 803(6) even though all the requirements are met.
Cole v. State,
The public records and reports exception (Rule 803(8)) allows the admission in evidence of records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to a duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other law enforcement personnel, or (C) against the State, factual findings resulting from an investigation made pursuant to authority granted by law. Tex. R.CRIM. Evid. 803(8). Additionally, it allows the trial court to exclude a report that would otherwise fall under this exception if sources of information or other circumstances indicate a lack of trustworthiness of the report. Id. The general policy behind this exception is that public records and reports are inherently reliable because of the presumptions that officers will perform their duties, that officers lack a motive to make false reports, and that public inspection of the reports will disclose inaccuracies. Michael H. Geaham, FEDERAL PRACTICE AND PROCEDURE, EVIDENCE § 6759 (Interim Edition 1997). Further, one other motivating factor in creating this exception is that requiring state officials to appear in court and testify about the information in their records and reports would be inconvenient and time consuming for the officials. John William Steong, McCormick on Evidence § 295 (4th ed.1992).
We may look to federal cases that interpret the Federal Rules of Evidence for guidance as to the scope and applicability of the Texas Rules of Criminal Evidence because our rules were patterned after the federal rules.
Cole v. State,
For the calculation summary report to fit under the public records and reports exception, it must contain information described in either (A), (B), or (C) of Rule 803(8).
Philpot v. State,
The first type of information that may be set forth in a public record or report is that of the activities of an office or agency. An example of this type of information is the record of receipts and disbursements of the Treasury Department. John William STRONG, McCoRmick on Evidence § 296 (4th ed.1992). A further example is a criminal person ease list printed out of a district attorney’s computer, indicating that a venire person had a pending theft by check case.
See Watson v. State,
The third type of information that may be set forth in public records or reports is factual findings based on an investigation. These investigative reports are not limited to only factual findings as the rule might suggest.
Beech Aircraft Corp. v. Rainey,
The second type of information that may be set forth in a public record or report is a matter observed pursuant to a duty imposed by law and a duty to report, excluding, however, matters observed by police officers and other law enforcement personnel. Tex.R.CRIM. Evid. 803(8)(B). Initially, we must determine whether the calculation summary contains “matters observed.” A strict reading of this phrase would limit it to situations where an official actually observed some act, process, etc. An example of this would be a medical examiner who observes a victim’s body during an autopsy.
See, e.g., Garcia v. State,
Even though the report did contain “matters observed,” Rule 803(8)(B) requires that there be some duty imposed by law to report these matters. The child support officers at the Attorney General’s office do have a duty to report when a father who is obligated to pay child support through the Attorney General’s office does not do so.
Rule 803(8)(B) has a specific circumstance when official reports are not admissible. The report is not admissible if it contains matters observed by police officers and other law enforcement personnel. Tex. R.CRiM. Evid. 803(8)(b). This limitation is
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based on the presumption that observations by an officer at a scene of a crime are not as reliable as observations by other public officials.
United States v. Ware,
We use a two-prong test to determine whether the child support officer is considered “other law enforcement personnel.”
Garcia v. State,
Second, the adversarial context in which the report was prepared should be considered in determining the admissibility of that report.
Id.
at 342. There is no evidence in the record as to when the calculation summary report was created, but the officer testified that it was in the ordinary course of her duties to create and keep the calculation summary report. Further, it is not the main duty of the child support officer to testify in criminal trials, although she may be required to do so on some occasions. Moreover, the Texas Court of Criminal Appeals has held that even matters observed by police officers are admissible, in spite of the express exclusion, if the observations were made and recorded in a ministerial way.
Pondexter v. State,
We conclude that the trial court did not abuse its discretion in admitting the report under the public records exception.
Further, evidence may come within more than one exception to the hearsay rule. Because the exhibit here was not expressly excluded by the public records exception, it may concurrently meet the records of regularly conducted activity exception. Tex R.CRiM. Evtd. 803(6). Laying the foundation for a record under Rule 803(6) requires proof of three basic facts: (1) that the record was made by or from information transmitted by a person with personal knowledge of the events or conditions recorded; (2) that the record was made at or near the time of the events or conditions recorded; and (3) that it was in the ordinary course of the reporting entity’s business to make and keep such records. There must also be no indication that the source of information or the method of preparation lacks trustworthiness. There is no requirement that the testifying witness must have created the records, or even have personal knowledge of the contents of the records.
Brooks v. State,
A report under the public records exception or the records of regularly conducted activities exception to the hearsay rule may present a trial court with a double hearsay problem. If a report contains some hearsay
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statement, the hearsay statement must fall under some hearsay exception of its own because neither the public records and reports exception nor the records of regularly conducted activities exception protects hearsay within hearsay. Tex.R.CRIM. Evid. 805;
Mary Lee Foundation v. Texas Employment Comm’n,
Often a record of regularly conducted activity incorporates and summarizes other records and materials. Although the calculation summary record is a summary of underlying records, it is itself a record of regularly conducted activity. The child support enforcement officer testified that it is in the ordinary course of her department’s job to make and keep such calculation summary records. Thus, this record is to be afforded the same deference that other records of regularly conducted activities are afforded.
See Curran v. Unis,
Even if Perry did preserve error, and assuming for argument that there was error in the admission of State’s exhibit number three, the error was harmless. In determining whether an error is harmful, an appellate court should isolate the error and all its effects and ask whether a rational trier of fact might have reached a different result if the error had not been committed.
Harris v. State,
Error in the admission of evidence can be rendered harmless where other admissible evidence proves the same facts that the inadmissible evidence sought to prove.
Anderson v. State,
The judgment is affirmed.
Notes
. “[Ejvaluative reports ... are admissible only in civil cases and against the government in criminal cases in view of the almost certain collision with confrontation rights which would result from their use against the accused in a criminal case.” Fed.R.Evid. 803(8) advisory committee’s note.