NO. 07-00-0492-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D MARCH 18, 2002

______________________________ LYNN STER LING HARDY, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 1 83rd DIS TRICT CO URT OF HARR IS COUNT Y; NO. 823,267; HON. W OODROW DENSEN, PRESIDING

_______________________________ Before BOYD, C.J., QUINN and REAVIS, JJ. Lynn Sterling Hardy (Hardy) appeals his convicti on for theft. Through five points of error, he contends that t he trial cour t abused its di scretion in admitting various exhibitsover his hearsay obj ection. Furthermore , because the ex hibits were inadmissi ble hearsay , the trial court also denied him his constitution al right to confront and cross-examine his accusers, he continues. We reverse t he judgment.1 Ac cor ding to the r eco rd, a “d um p pu m p” is a hydra ulic pu m p us ed o n du m p truc ks

. 2 Background The State indicted appellant for theft of property

having a value exceeding $20,000. The property consisted of “dump p umps.” 1 Allegedly, he converted the pumps f rom hi s employer

Hyseco, Inc. and sold th em to othe r s. Hyseco discovered that pumps were missing and began to contact potential customers fo r same. At least four entities which were contac

ted admitted to buying pum ps from appella nt. So to o did the y acknowled ge thatthe pumps ap peare d to them to be the prop erty of Hyseco, after a Hyseco repre sentat ive d escri bed them

. Th e evidence from w hich the contr oversy before us arose concerned State ’ s Exhibits10 and 12. The former contained information given to Hyseco employees by the company’s security

service. It

purported to s how the times at which company employees, including appellant, entered the facility. The latter exhibit ( i.e. 12) contained a letter, addressed to the local d istrict a ttorney, from a n “Anthony J ohn Payne” ( Payne) of Cape Manufacturing Engineers, Cape Town, Sout h Africa. A ccording to the letter, Cape Manufacturing made the pumps in q uestion. Therei n, Payne stated: This fax serves to confirm that the pumps returned by the Police to Hyseco and inspected by

me on Thursday 1 4 October 1999 [s ic] wer e of South African origin. This can be confirmed by t he foundry identi fication and cast lot No. on the side of the Po rt End Cover. We have supplied these Pumps to th ree companies in the United States but the Hyseco pu mps can be identi fied by the pitch of drilled h oles used to hold on the name t ag. Hyseco tag hol es are 2 7/8" apar t whils t the other customer tag holes are 1 3/4" apart.”3

Appellant objec

ted to the foregoi ng exhibi ts as hearsay . So too did he arguethat they were n ot admissib le business records within the scope of T exas Rule of Evidence 803(6). Finally , he posited that their admission would eff ectively deny him his constit utional right to confront his accusers. However, the court overruled the objec tions and admitted them. Points One Through Four Via his first four

points of error, appellant questio ns the admission of Exhibit 12, in particular

the Payne letter. The evidence was allegedlyinadmissibl e because it con stituted unreliable hearsay out

side the scope of any hearsay exception. Furthermore, its adm ission purportedly resulted in the denial of his right to conf ront and cross-examine his accusers. We agree. Authority The applicable s tandard of revi ew is one of abused discreti on. As long as the trial judge operates within the ambit of his discr etion in decid ing to admit or exclud e evidence,
we should not dis turb his deci sion, irr espective of what it may be. Feldma n v. State , No. 73,654, 22 (Tex. Crim. App. F eb. 20, 2002); Montgomery v. State , 810 S.W.2d 372, 390 (Tex. Cri m. App. 1990). In ot her words , decisions which come within t he zone of reasonable disagreement, when measured against pertinen t law and t he circumstances before the trial cour

t, do not evi nce abused discr etion. Feldman v

. State , No. 73,654, 22; Montgomer

y v. State , 810 S.W.2d at 391. Next, hearsay consists of an out-of -court statement offered to prov e the truth of the matter asserted. T EX
. R. E VID
. 801(d); Guidry v. St ate , 9 S.W.3d 133, 152 (Tex. Cri m. App.4

1999). Moreover , its tender by t he State and recei pt into evidence i n a criminal proceeding implicatesthe Confron tati on Clause of the Si xth Amendment to th e United States Constitution. Guidry

v. State , 9 S.W .3d at 149. This is so because the defendant is not afforded the opportunity to confront the out- of-court declar ant. Id. Yet, thatsuch evidence
was admitted does not au tomatically result in the depriva tion of the consti tutional ri ght. Rather, error occ urs when the evidence neither falls within a recognized exception to the hearsay r ule or has par

ticularized guarantees of trustwor thiness. Id. at 150; Muttoni v. State , 25 S.W.3d 300, 305 (Tex. App.–Aust in 2000, no pet.)

. Application of

Authority As previous ly mentioned, the evidence in questi on encompasses a w ritten statement

from an “Anthony

John Payne” of

Cape Manufacturi ng Engineer s, Cape Town, South A frica. Therein, he endeavors to identify pumps allegedly

stolen by appellant as those of Hyseco. He does so by describing the supposed uniq ueness of the holes drilled in them and used to affix Hyseco’ s label to theitem . More over, the m issive was faxed to the local district attorney after the latter or various police off icers induced Payn e to create it for use in i nvestig ating and, no do ubt, prosecuting the purported t heft. Finally , proving thatthe items belong ed to the complaina nt was cr itical to t he successful pr osecution of appellant. From the foregoing , it can be sai d that the contentsof the let ter rep res ente d out-ofcourt statements of Pay ne. Not only did Payne identify the pumps as belon ging to Hyseco butalso his tes timony was offered to prov e that supposed fact. In other words, t hey

were2 Our court of cri minal appeal s has recogni zed t hat j udici al opi nions i nter pret ing t he Federal Rules of

Eviden ce are hel pful in i nter pret ing ou r Texas Ru les of Evide nce
. Co le v. Sta te , 839 S.W .2d 798, 801 (Tex. Crim . App . 199 0). T his is s o be cau se o ur sta te rules are p attern ed a fter the fede ral rules

. Id. 5 offered as proof of

the matter asser

ted. Thus, it is be yond quest ion that they constituted hea rsay wit hin t he de fin itio n esp ouse d by Guidry and the rules of evidence. Next, the State attempted to justify admi ssion of the evide nce b y contending that itfell with in the business record exception to the hearsay rule, i.e. Texas Rule of Evidence 803(6). However, equall y clear from the record before us is that the document was created solelyfor the purpose of prosecuting criminal c harges ag ainst appellant . This means that itwas made in anticipation of litigat ion, and, being made for that purp ose, it cannot fall within the cate go ry

of a business re cord. Dixon v. Stat e , 940 S.W .2d 1 92, 1 95 (T ex. App.–San Antonio 1996, no pet.) (holding that a list of missing items was not a business record, for purposes of the hea rsay rul e, because it w as de ve loped in antic ipation of litigation); see Palmer

v. Hoffm an , 318 U.S. 109, 112 -15, 63 S. Ct. 477, 4 79-81, 87 L. Ed. 645 (1943) (hol ding that statements obtaine d in anticipation of litigation were not business records); Certain Underwriters v. Sinkovich , 232 F.3d 200, 204-205 (4 th cir. 2000) (holding the same). 2 Moreover , being made in anticipation of litigati on, the statement is als o inherently unreliable. Cole v. State , 839 S.W.2d 7 9 8, 809 n.9 (Tex. Crim. App. 1990 ). Given these circ umstances, the tw o cond itions upon w hich hearsay may be admitted without violati ng a defendant’s Si xth Amendment ri ght to confront h is accusers were not met at bar. See Muttoni v. State , 25 S.W.3d at 3 07-308 (holding t hat the improper admission of hearsay v iolates an acc used’s consti tuti onal right to confront and examine witnesses ). Thus, the tr ial court erred in admitti ng the fax from Pay ne.3 W e do not r ead the Court of Criminal Appeals as sayi ng that but f or t he improperl y admit ted evi dence, there m us t be no ev ide nc e w hic h c ou ld have reaso nably persuaded the jury to find guil t. I f this were not so, th en th e m ere f act th at the verd ict enjo ys the s upp ort of l egall y suf fi cient evi dence woul d be deter minati ve. Yet, we have been tol d ti me and time again, thr ough cases such as McCarthy and W esbrook , that the mere exi stence of some independentevi dence support ing gu il t i s not enou gh reason t o hold error harm less

. 6 Having found th at the t rial court ’s dec ision was wron g, we mu st now det ermine whether it caused appel lant to suffer harm . In d oing s o, we turn to Rule44.2 of the Texas Rules of Appe ll ate Procedure. Through it, t he Court of Cri minal Appeals di rected us to
rever se t he judgment if the error was of constituti onal dimension and we are unabl e to hold, beyond reasonable doubt , that it did not contri bute to th e convicti on. T EX
. R. A PP
. P ROC
. 44.2(a). This requires us to assess whether “there was a re asonable possibilit y that the error, ei ther

alone or in contex

t, moved the j ury from a state of nonpersuasion to one of persuasion . . . .” 3 Wesbro ok v. State , 29 S.W.3d 103, 119 (Tex. Cri m. App. 2000) (emphasis supplied). In performing this task, we gaug e the error’ s potential i mpact in lig ht of the other ev idence and cir cumstances appeari ng of record. McCarthy v . State , No. 73,350, 20 01 WL 1575803 (Tex. Crim. App. D ecember 12, 2001). This does not mea n thatif some other evidence exists upon which the verdict can be founded the err or was harmless. Id. Indeed, the independent evidence of guilt must be overwhelming before it
can ameliorate the mistake. Wesbrook v. State , 29 S.W.3d at 119; Muttoni v. Sta te , 25 S.W.3d at 30 8. W ith t his sa id, we turn to ou r ana lysis o f whe ther the e rror a t bar wa s harmful. Incremental to establishi ng appellant’ s culpabili ty for the theft w as provin g that

the pumps belonged to H yseco. Asdepicted in the testimony of one or mo re witnesses, pum ps of this ilk w

ere not uniqu e. Many companies made identi cal items. I ndeed, one4 Eviden ce reveal ed that each pump had a u ni que serial num ber. Howe ver, Hyseco did not record the seria l num bers of its pumps. So, t he seri al numbers were of no use i n iden ti fy ing t he owner of the i tems. 7 witness viewed the units as common. So, in effort to establis h that they bel onged to Hyseco, the State had a representative of Hy seco, Richar

d Wagoner, testify about how Hyseco’s items wer

e actually

unique and that

ownershi p could be ill ustrat ed by thei r uniqueness. 4 The purportedly unique characteri stics consisted of the color of the paint app lied to th e pumps, the foundry marks appeari ng thereon, thebelief that Hy seco was one of only two company’s that sold the pump in th e United States, and the location of ri vet holes us ed to mo unt the Hyseco tag. As to color, the pumps wer e painted blue. Howev er, the paint was appli ed by the manufacture r, not Hy

seco. And, w hether

it was a sh ade uni que so lely to thos e items bought by Hyseco for

resale, the r

ecord does not say. F urthermore, H yseco was not the sole distributor

of the particula r items. At least one or two other

businesses s old them. So, whether like pumps with similar co loring could have come from sources other than Hyseco remained disputed. As to the foundry marks, th ey too were applied by the manufacturer, not

Hyseco. Fur thermo re, each pump appeared to have the same mar king. Whether that partic ular marking was uniq ue to the units s old to Hys eco or was applied to every

pump sold by the manufacturer

to every other distributor als o fails to appear of record. According to Wagoner, “[t]he manufacturer w ould have to a nswer that .” As to the number

of entities that distributed t he units in theUnited States on behalf of Cape Manufacturi ng, Wagoner testified that there were only two. However, the accuracy8

of his conclusion was rendered suspect by the very hearsay evidence in question. Payne represented that

Cape sold the p umps to three dis tributors. As to the locati on of the rivet holes in the pump casings, Wagoner’s own testimony rendered that evidence less than definitive. He testi fied tha t the t ags pl aced on the items by Cape Manufacturing were done so in a specific manner. That is, the ri vets were located
a certain distance from each other, and only those pumps sold to Hyseco had rivets so spaced. Yet, under questioning , Wagoner said that he bought a pump from an other Cape Manufacturing distributo r, whic h distributor was located in Miss issippi. Furthermore, the p ump h e acquired in Mississippi had rivet holes similarly spaced to those on his pumps. Because W agoner had legitimately bough t a pumpwith like holes from another distributor, it can hardly

be said that the holes wer e unique to i tems sold by Hyseco. Moreover, while t hose who boug ht the pumps from ap p ellant concl uded that they belonged to Hyseco, they did so on the basis of Wagoner’s genera l descripti on of same. Theyhad no p ersona l knowledge that Hyse co origi nally ow ned them. Nor could they so conclude from merely l ooking at the pumps . Testimony indicated that inspection of the itemscould have resulted in t he identificatio n of their manufacturer , but not their distributor. To this wasadded the testimony thatseveral different companies made pumps identical to those alleg edly stol en, that “lotsof people sell th em,” that they are common pumps, and that the tags that appear on them ar e “about the same s ize.” From the fo regoing, one can s ay that evidence of ownership by Hyseco (independent

of that contained i n the Payne hear say letter) appe ared of record. So too maythat evidence be legal l y sufficient to support a finding of guilt. Yet, it was founded upon the conclusi ons of Wagoner reg arding the uniquenessof the pumps his company5 H av ing he ld a s w e d id re ga rd ing the ad m iss ion of e xh ibit 1 2, w e n ee d n ot c on sid er ap pe llan t’s

other issues. 9 sold. And, as illustrated above, the evidence of their supposed uniqueness w as short of overwhelmi ng. Also, to quell any further dispute regarding ownershi p, the State expressly referred the jury, during closing, to the inadmissible hearsay l etter of Payne. Itcannot be denied that a manufacturer’ s statement that s omethi ng is un ique t o ite ms bo ught by a particular

distributor

has persuasi ve val ue. Given thes e circumstances, we ar e unable to conclude, beyond reaso nable doubt, that the hearsay

before us did not contribute to the jury’s ultimate verdict, and this prohibits us from holdin g the error harmless. Accordingl y, the judg ment is reversed and the caus e remanded to the tr ial court. 5

Brian Quinn Justice

Publish.