NO. PD-0246-15 

NO. PD-0247-15

IN THE 

COURT OF CRIMINAL APPEALS 

OF TEXAS 

AT AUSTIN 

_________________________ 

VALENTIN JUNIOR HERNANDEZ, 

 Appellant 

v. 

THE STATE OF TEXAS, 

 Appellee 

_________________________ 

On appeal in Cause Nos. F12-61625-H & F12-61626-H 

from the Criminal District Court No. 1 

Of Dallas County, Texas 

And on Petition for Discretionary Review from 

the Fifth District of Texas at Dallas 

In Cause Nos. 05-13-00478-CR & 05-13-00479-CR 

_________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW 

_________________________

 Counsel of Record:

 Lynn Richardson Nanette Hendrickson 

 Chief Public Defender Assistant Public Defender 

 Dallas County Public Defender’s Office 

 Katherine A. Drew State Bar Number: 24081423 

 Chief, Appellate Division 133 N. Riverfront Blvd., LB 2 

 Dallas, Texas 75207-399 

 (214) 653-3550 (telephone)

 (214) 653-3539 (fax)

ATTORNEYS FOR PETITIONER/APPELLANT 

PD-0246-15 & PD-0247-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/6/2015 2:25:23 PM

Accepted 4/13/2015 3:27:29 PM

ABEL ACOSTA

CLERK
ii

LIST OF PARTIES 

TRIAL COURT JUDGE 

Robert Burns, Presiding Judge 

APPELLEE 

Valentin Junior Hernandez 

APPELLEE’S ATTORNEYS 

AT TRIAL 

Stanley Mays 

2214 Main St. 

Dallas, TX 75202 

ON APPEAL 

Nanette Hendrickson, State Bar No. 24081423 

Assistant Public Defender 

Dallas County Public Defender’s Office 

133 N. Riverfront Blvd., LB 2 

Dallas, Texas 75207-4399 

STATE’S ATTORNEYS 

AT TRIAL 

Leah Thomson, State Bar No. 24036177 

Brandi L. Wade, State Bar No. 24065835 

ON APPEAL 

Anne B. Wetherholt, State Bar No. 21235300 

Assistant District Attorney 

Dallas County District Attorney’s Office 

Frank Crowley Courts Building 

133 N. Riverfront Blvd., LB-19 

Dallas, Texas 75207-4399 
iii

TABLE OF CONTENTS 

LIST OF PARTIES ................................................................................................... ii

INDEX OF AUTHORITIES ....................................................................................iv

STATEMENT REGARDING ORAL ARGUMENT ............................................... 1

STATEMENT OF THE CASE ................................................................................. 1

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 2

STATEMENT OF FACTS ........................................................................................ 2

GROUND FOR REVIEW ......................................................................................... 2

Whether the Court of Appeals erred in holding that the best 

evidence rule does not apply to testimony regarding the contents of 

a document. ...................................................................................................... 2

ARGUMENT ............................................................................................................. 2

FACTS ............................................................................................................. 3

APPLICABLE LAW ....................................................................................... 4

THE COURT OF APPEALS’ HOLDING IS INCORRECT ......................... 5

CONCLUSION ............................................................................................... 9

PRAYER FOR RELIEF ............................................................................................ 9

CERTIFICATE OF SERVICE .................................................................................. 9

CERTIFICATE OF COMPLIANCE ....................................................................... 10
iv

INDEX OF AUTHORITIES 

Cases

Ali v. State, 

26 S.W.3d 82 (Tex. App.—Waco 2000, no pet.) .............................................. 7 

Englund v. State, 

946 S.W.2d 64 (Tex. Crim. App. 1997) ................................................... 4, 5, 6 

Hernandez v. State, 

No. 05-13-00478-CR & 05-13-00479-CR, 2014 Tex. App. LEXIS 996 (Tex. 

App.—Dallas October 22, 2014).......................................................... 2, 6, 7, 8 

Overton v. State, 

490 S.W.2d 556 (Tex. Crim. App. 1973) ......................................................3, 4 

Ramsey v. Jones Enterprises, 

810 S.W.2d 902 (Tex. App.—Beaumont 1991) ............................................... 5 

Sharp v. State, 

707 S.W.2d 611 (Tex. Crim. App. 1986) ......................................................6, 7 

Other Authorities

Weinstein, J. B., Berger, M. A., and McLaughlin, J.M. Weinstein's Evidence 

Manual. 2nd Ed. Chicago: M. Bender, 1995. 1002. Print. ................................ 5 

Rules

TEX. R. APP. P. 68.4 (i) ......................................................................................... 2 

TEX. R. EVID. 1002 ................................................................................................ 4 
1

TO THE HONORABLE COURT OF CRIMINAL APPEALS: 

Valentin Junior Hernandez, Appellant, respectfully presents to this 

Honorable Court his Petition for Discretionary Review of the Fifth District 

Court of Appeals’ Opinion affirming the trial court’s judgment. 

STATEMENT REGARDING ORAL ARGUMENT 

Appellant requests oral argument because this case presents a question 

of law on issues having statewide impact and possible reoccurrence. Oral 

argument may be helpful to the members of this Court in the resolution of 

the issues presented. 

STATEMENT OF THE CASE 

 Appellant was charged by indictment with the offense of aggravated 

robbery with a deadly weapon in each case. (CR1: 16; CR2: 161). Appellant 

pled not guilty to the charges in the indictments. (RR2: 6). A trial was held 

before a jury, and the jury found Appellant guilty of the offenses. (RR3: 

162). After a hearing on punishment, the jury assessed punishment at fifteen 

years to serve on trial case number F12-61626 and twenty years to serve on 

trial case number F12-61625. (RR4: 121). The trial court ordered both cases 

to run concurrent to each other. (RR4: 121). Judgment was entered by the 

trial court on April 3, 2013. (CR1: 42; CR2: 38). Notice of appeal was 

timely filed. (CR1: 43; CR2: 47). 
2

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE 

On February 3, 2015, in an unpublished opinion authored by Justice 

Bridges, the Court of Appeals for the Fifth District of Texas affirmed the 

trial court’s judgment. Hernandez v. State, No. 05-13-00478-CR & 05-13-

00479-CR, 2014 Tex. App. LEXIS 996, * 11 (Tex. App.—Dallas October 

22, 2014). This Court granted an extension of time to file a Petition for 

Discretionary Review, which is timely if filed on or before April 6, 2015. 

STATEMENT OF FACTS 

 The facts of this case, which are extensive, are adequately recited in 

the Court of Appeal’s opinion, which is attached to this Petition as required 

by TEX. R. APP. P. 68.4 (i). 

 Suffice it to say that Appellant was charged with and convicted of 

aggravated robbery with a deadly weapon in two separate cases. (CR1: 42; 

CR2: 38; RR3: 162). 

GROUND FOR REVIEW

Whether the Court of Appeals erred in holding that the best evidence 

rule does not apply to testimony regarding the contents of a document. 

ARGUMENT 

 The Court of Appeals incorrectly applied the standard that “the [best 

evidence] rule applies only where the purpose of the offered evidence is to 
3

prove the contents of the document.” Overton v. State, 490 S.W.2d 556, 559 

(Tex. Crim. App. 1973). 

FACTS 

Officer Cory Cook testified to his prior contacts with Appellant during 

the punishment phase of the trial. (RR4: 22-31). Cook testified that he knew 

Appellant as a child, but before he started committing crimes. (RR4: 28). 

Otherwise, Cook’s only other interaction with Appellant was during an 

investigation into an aggravated assault Appellant in which Appellant was a 

suspect. (RR4: 24). Cook interviewed Appellant, but could not recall if 

Appellant claimed any particular gang membership at that time. (RR4: 24). 

Cook testified that the Carrollton Police Department kept gang cards 

regarding prior contacts with gang members. (RR4: 24, 28). Cook also 

testified that the Carrollton Police Department had gang cards relating to 

Appellant and his activities. (RR4: 28). Cook did not state that he was the 

custodian of the records, and the gang cards were not admitted as business 

records. (RR4: passim). Appellant objected to Cook testifying to the content 

of the cards based on the best evidence rule. (RR4: 29). The trial court 

overruled the objection. (RR4: 29). The gang cards were not produced for 

inspection nor were they admitted during the trial. (RR4: passim). 

Furthermore, Appellant’s trial counsel stated that he had not seen them. 
4

(RR4: 29). Over Appellant’s objection, Cook testified, from memory, that 

the gang cards stated Appellant had contact with the Carrollton Police for 

fighting, proclaiming he was a gang member, and intimidating his 

neighborhood as part of a gang. (RR4: 29-30). 

APPLICABLE LAW

 The best evidence rule states that to “prove the content of a writing, 

recording, or photograph, the original writing, recording, or photograph is 

required” except where allowed under the law. TEX. R. EVID. 1002. The rule 

is applicable where the proposed evidence is needed to prove the contents of 

the item. Overton v. State, 490 S.W.2d 556, 559 (Tex. Crim. App. 1973). 

Englund v. State provides the initial purpose behind the best evidence 

rule: 

 First, we review the rationale for the common-law rule 

on which Rule 1002 was based. 

“Four somewhat overlapping reasons have been advanced to 

justify a rule preferring production of the original: 

(1) The nature of documents is often such that the exact words 

are “of more than average importance, particularly in the case 

of operative or dispositive instruments . . . where a slight 

variation of words may mean a great difference in rights”. 

(2) Secondary evidence -- whether parol testimony or copies -- 

is susceptible to both human and mechanical error. The rule, 

therefore, enhances the probability of accuracy. 
5

(3) The rule promotes the prevention of fraud because it allows 

the parties to examine documents for any defects or alterations, 

and it dampens any desire to color testimony as to the contents 

of documents, since any testimony is subject to immediate 

corroboration. 

(4) The appearance of the original may furnish information as 

to its authenticity and significance that may be lacking in a 

copy, such as handwriting, paper and the like.” 

Englund v. State, 946 S.W.2d 64 (Tex. Crim. App. 1997)(emphasis added), 

(quoting J. Weinstein, M. Berger & J. McLaughlin, Weinstein’s Evidence P 

1002 (1995)). 

The Beaumont Court of Appeals held it was error to allow a witness 

to testify regarding the content of documents regarding title to real property. 

Appellee’s expert gave hearsay testimony as to the existence 

and content of documents in writing, but such documents were 

never produced and admitted into evidence. This is precisely 

what TEX. R. CIV. EVID. 1002 was adopted to prevent. The 

best evidence of the content of documents is the documents 

themselves. The trial court erred in admitting hearsay testimony 

to prove up the content of documents without a proper showing 

that the subject documents were unavailable through no fault or 

failure on the part of the party offering same. 

Ramsey v. Jones Enterprises, 810 S.W.2d 902 (Tex. App.—Beaumont 

1991). 

THE COURT OF APPEALS’ HOLDING IS INCORRECT 

The Court of Appeals’ decision is in conflict with the holding of this 

Court and other Courts of Appeals. 
6

The case at bar demonstrates the exact purpose for the best evidence 

rule, as stated in Englund. 

“(3) The rule promotes the prevention of fraud because it 

allows the parties to examine documents for any defects or 

alterations, and it dampens any desire to color testimony as to 

the contents of documents, since any testimony is subject to 

immediate corroboration.” 

Englund, 946 S.W.2d 64 (Tex. Crim. App. 1997) (emphasis added). This 

Court has ruled that the best evidence rule prevents a witness from 

misrepresenting the content of a document while testifying because the 

parties can inspect the document and impeach the testimony, if needed. The 

best evidence rule was pertinent in the case at bar since it would have 

ensured the veracity of Officer Cook’s testimony and allowed defense 

counsel to impeach him if the gang cards were present. Since Officer Cook’s 

testimony was elicited to prove the contents of the gang cards, the best 

evidence rule was applicable in Appellant’s case. 

Furthermore, in its opinion, the Court of Appeals stated that the “best 

evidence rule does not apply when the item in question is not admitted into 

evidence to prove its contents.” Hernandez, 05-13-00479-CR, 2015 Tex. 

App. LEXIS 996, at *3 (quoting Sharp v. State, 707 S.W.2d 611, 618 (Tex. 

Crim. App. 1986)). In Sharp, the issue was whether the trial court erred by 

allowing the prosecutor to question the witness using a transcript of a tape 
7

recording as opposed to the actual recording itself. Id. Both items of 

evidence were present at trial and the State did not oppose using the tape. Id. 

Therefore, the Court of Criminal Appeals ruled that since neither item was 

admitted as evidence, the best evidence rule did not apply. Id. Additionally, 

the Court ruled the best evidence rule only applied to documents, not tape 

recordings. Id. 

Sharp differs from the case at bar because the gang cards were not 

present during the hearing; therefore, they could not be entered as evidence. 

Even if they were present, the trial court overruled Appellant’s objection. As 

such, the State did not seek to admit them as evidence. Furthermore, the 

evidence in Sharp was not documentary evidence whereas it was in the

present case. Id. 

The Court of Appeals in its opinion also cited Ali v. State as holding 

that “the best evidence rule does not apply if the document and contents in 

question are only collaterally related to the issues in the case.” Hernandez, 

05-13-00479-CR, 2015 Tex. App. LEXIS 996, at *3-4 (quoting Ali v. State, 

26 S.W.3d 82, 88 (Tex. App.—Waco 2000, no pet.)). However, the gang 

cards were not collateral to Appellant’s case. During the trial on punishment, 

the State was asking Officer Cook about his knowledge regarding 

Appellant’s gang status. The State specifically asked if he knew Appellant 
8

was in a gang based on his knowledge of Appellant as a child and during 

Cook’s time as an officer. Cook specifically said that Appellant was not in 

trouble as a child. (RR4: 28). Cook also investigated Appellant as a suspect 

in a prior offense. (RR4: 23-4). When specifically asked by the State about 

his claimed gang status at that time, Cook stated he could not recall if 

Appellant told him during the investigation if he was in a gang or not. (RR4: 

24). 

The State then asked Cook about the content of the gang cards 

regarding Appellant’s gang status. (RR4: 24, 28). In that regard, the State 

asked Cook, “Based on his gang card, what types of contacts has he had with 

the gang unit?” (RR4: 29). Contrary to the Court of Appeal’s opinion which 

stated this only provided “background relating to the ascertainment of 

appellant’s gang affiliation,” this question specifically references 

Appellant’s gang affiliation, the exact issue the State had been asking about 

during the entirety of Officer Cook’s testimony. Hernandez, 05-13-00479-

CR, 2015 Tex. App. LEXIS 996, at *7. Therefore, the gang card content was 

not collateral, but the exact issue the State sought to prove through Cook’s 

testimony. 
9

CONCLUSION 

The Court of Appeals’ decision to affirm the trial court’s ruling is 

contradictory to the rulings of this Court. This Court should grant 

discretionary review to resolve this discrepancy between the Court of 

Appeals’ ruling and the ruling of this Court. 

PRAYER FOR RELIEF 

For the reasons herein alleged, Appellant prays this Court grant this 

petition and, upon reviewing the judgment entered below, remand the case for a 

new trial. 

 Respectfully submitted, 

 Lynn Richardson 

 Chief Public Defender 

 

 /s/ Nanette Hendrickson 

 Nanette Hendrickson 

 Assistant Public Defender 

 State Bar No. 24081423 

 

CERTIFICATE OF SERVICE 

 I hereby certify that on the 6th day of April, 2015, a true copy of the 

foregoing petition for discretionary review was served on Anne B. Wetherholt, 

Assistant District Attorney, Dallas County Criminal District Attorney’s Office, 

133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic 

delivery at DCDAAppeals@dallascounty.org and hand delivery; and was also 

served on, Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046, 

Austin, Texas, 78711 by electronic delivery and by depositing same in the 

United States Mail, Postage Prepaid. 

 

 /s/ Nanette Hendrickson 

 Nanette Hendrickson 
10

CERTIFICATE OF COMPLIANCE

 I certify that the foregoing Petition for Discretionary Review contains 

2,376 words. 

 /s/ Nanette Hendrickson 

 Nanette Hendrickson 
APPENDIX