James Michael Thompson v. State

Opinion issued May 26, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00084-CR

———————————

James Michael Thompson , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Case No. 1213980

MEMORANDUM OPINION

A

jury found appellant, James Michael Thompson, guilty of the offense of theft. [1] After finding true the allegations in two

enhancement paragraphs that appellant had been twice previously convicted of

felony offenses, the jury assessed his punishment at confinement for twenty

years. In one issue, appellant contends

that the trial court erred in admitting into evidence, under the business

record exception to the hearsay rule, an exhibit containing photocopies of

credit receipts and purchase orders.

We

affirm.

Background

Guadalupe

Martinez, the safety director at Unlimited Trucking (“Unlimited”), testified

that Unlimited is a Houston area trucking company that hires owner-operators of

vehicles through another company, MTY Trucking (“MTY”), which operates under

Unlimited’s license. [2] Martinez noted that MTY hired appellant as a

truck driver in March of 2008, but terminated his employment on April 21,

2008.

Martinez explained that MTY truck

drivers, in accordance with MTY’s policy, do not pay for the diesel fuel for

their trucks. Rather, an MTY truck

driver obtains fuel for his truck at T’s Mini Mart, a diesel fuel station,

after obtaining a “purchase ticket order” from a MTY dispatcher. Martinez further explained that the MTY

purchase ticket order contains “the vehicle number so that fuel can be deducted

from the profits of that vehicle,” the truck driver’s name, and the first four

digits of his driver’s license number.

After obtaining a purchase ticket order, a truck driver must present it

and his driver’s license to a T’s Mini Mart employee who is to verify the first

four digits of the driver’s license number and write the last four digits of

the driver’s license number on the ticket.

After obtaining the fuel for his truck, the driver must return to the

T’s Mini Mart employee to obtain a receipt for the fuel purchase. At the end of each week, a MTY representative

gathers the purchase tickets and receipts, and MTY then pays for all of the fuel

purchased.

Martinez further testified that

although the employment of appellant was terminated on April 21, 2008, he

continued to obtain fuel from T’s Mini Mart using MTY’s purchase ticket orders

without the permission of Unlimited or MTY.

The State offered into evidence

State’s exhibit number one, which contains eleven photocopied pages, each

containing a copy of a purchase ticket order, appearing on the bottom of the

page, and a corresponding T’s Mini Mart receipt, appearing on the top of the

page. Appellant’s trial counsel objected

to the exhibit on “best evidence” grounds, which the trial court

sustained. After appellant’s trial

counsel renewed his “objection as those are not the originals,” the trial court

excused the jury, and the court and appellant’s trial counsel had an

opportunity to question Martinez as follows:

[Trial

Court]: And do you have these

originals back in your office?

[Martinez]: Yes, sir.

[Trial

Court]: Did the State ask for them?

[Martinez]: No, sir. They are kept in the

administration department.

. . . .

[Trial

Court]: So the State knew that you

had the originals, but they didn’t ask for them.

[Martinez]: No, sir.

[Trial

Court]: All they wanted was the

copies. It could have been just as easy

to bring in the originals as it was the copies, correct? Someone had to make

copies of them.

. . . .

[Martinez]:

Judge, I don’t know about just

as easy; but, yes, they could have been provided, yes, sir.

. . . .

[Trial

Court]: Okay. Well, [appellant’s trial counsel] I guess if

you are put on the spot to raise a question as to the authenticity.

[Trial

Counsel]: Judge, I was just wanting to

mention if I can have the witness on voir dire for a moment; or if the court

would prefer, [the State] indicated that all of these documents were actually

prepared by MTY or Unlimited Trucking when, in fact, he then turned around and

said the receipts were prepared by someone else. So I do have a question as to the

authenticity, maybe not of the credit card but of whatever they are calling the

other receipt that appears on the bottom of the page. This witness did not prepare that, and this

witness doesn’t know who prepared those.

Therefore, I do have a question as to the authenticity.

[Trial

Court]: Where did the purchase orders

that are contained on each page of the exhibit come from? How would your

company end up with those in their possession?

. . . .

[Martinez]: Okay. The bottom part, the bottom

ticket is the part that the driver gets, okay.

He gets — that is two copies.

. . . .

[Trial

Court]: So the bottom purchase

order on each page which is 11 pages of State’s No. 1 . . . are all purchase orders that belong to MTY?

[Martinez]: Not necessarily, no, sir. Those could be purchased at any Office Depot

or anything like that.

[Trial

Court]: That is obviously the basis

of the objection.

. . . .

[Trial

counsel]: Well, judge since evidently

MTY allegedly did not prepare the bottom receipt. Then I do have a question as

to the authenticity without seeing the originals.

[Trial

Court]: I will overrule the

objection. It goes to the weight and not the admissibility at this time

although the better practice would have been to have to originals.

After the jury returned to the courtroom, the trial

court admitted State’s exhibit number one into evidence. The records contained in State’s exhibit

number one reveal that from May 16, 2008 through May 25, 2008 appellant

obtained a total of $7,756.27 worth of diesel fuel that was paid for by

MTY.

Waiver

In his sole issue, appellant argues that the trial court

erred in admitting into evidence an exhibit that included copies of eleven

credit receipts and purchase ticket orders as business records because Martinez

“did not know who prepared the bottom record nor could he testify that the

record was in fact a MTY ticket.” He

argues that the record was not admissible under the business record exception

to the hearsay rule because Martinez did not “have knowledge of how the record

was prepared.” See Tex. R. Evid. 803(6). He further asserts that the trial court’s “determination

that the issue surrounding the exhibit went to its weight rather than its

admissibility was arbitrary and unreasonable.”

The State argues that

appellant has not preserved this issue for our review. To preserve a complaint for appellate review,

a party must present to the trial court a timely request, objection, or motion,

stating the specific grounds for the ruling he desires the court to make if the

specific grounds are not apparent from the context. Tex.

R. App. P . 33.1(a)(1)(A).

It is well established

that the ground of error presented on appeal must comport with the objection

raised at trial; otherwise nothing is presented for review. Crocker v. State , 573 S.W.2d 190, 205 (Tex. Crim. App. 1978) ;

s ee Guevara v. State , 97

S.W.3d 579, 583

(Tex. Crim. App. 2003) (holding that point of error on appeal

must comport with objection at trial); Hailey v. State , 87 S.W.3d 118, 122 (Tex. Crim. App. 2002)

(stating that appellate court cannot reverse on legal theory not presented to

trial court by complaining party). If an

objection made in the trial court differs from the complaint made on appeal, an

appellant has not preserved any error for review. Thomas

v. State , 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). The record must show that the complaining

party gave the trial court an opportunity to rule on the complaint by

presenting that complaint to the trial court in a specific and timely

objection. See Tex. R. App.

P. 33.1(a); Geuder v. State , 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State , 98 S.W.3d 189, 193 (Tex. Crim. App.

2003); Lankston v. State ,

827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

Further, making the trial court aware of the complaint requires that

both the grounds and what is being objected to be apparent. See Hernandez v. State , 599 S.W.2d 614, 617 (Tex. Crim.

App. 1980) (op. on reh’g).

At trial, appellant

argued that the exhibit was inadmissible because it did not contain the

originals. Appellant then renewed his

objection “under the best evidence rule.”

The trial court initially sustained appellant’s objection. After the trial court allowed further

testimony, appellant again renewed his objection stating, “those are not the

originals.” The trial court dismissed

the jury and heard additional testimony concerning the location of the original

documents and how they were created. On

appeal, appellant now argues that the trial court erred in admitting the

exhibit as a business record under rule 803(6) because Martinez “did not know

who prepared the bottom record nor could he testify that the record was in fact

a MTY ticket.” He further argues that

the business record was inadmissible because “the circumstances surrounding its

preparation indicate a lack of trustworthiness.” However, appellant did not object at the

trial court that the exhibit was inadmissible hearsay and should not be

admitted under rule 803(6) because the State did not lay the proper predicate. Rather, he simply argued that it was

necessary to have the originals in order to prove authenticity.

Because appellant did not give the trial court the opportunity

to consider the inadmissibility of the evidence for failing to comply with rule

803(6), he may not now complain about it on appeal. We will not reverse a trial court’s

evidentiary ruling on a theory of admissibility or inadmissibility not raised

at trial. See Martinez , 91 S.W.3d at 336; Kuecker v.

State , No. 01-07-00016-CR, 2008 WL 1747692 , at * 4 (Tex. App.—Houston [1st

Dist.] Apr. 17, 2008, no pet.) (mem. op.).

Because his objection at trial differs from his complaint on appeal,

appellant has failed to preserve error. Thomas , 723 S.W.2d at 700 .

We overrule appellant’s sole issue.

Conclusion

We

affirm the judgment of the trial court.

Terry

Jennings

Justice

Panel

consists of Justices Jennings, Higley, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann. § 31.03

(Vernon Supp. 2008).

[2] Martinez noted that he would consider

himself an employee of MTY as well.