Thursday, January 7, 2010
Girl From The Pawn Shop: Court Of Appeals Finds Pawn Shop Database Printout Admissible Under Rule 803(15)
Like its federal counterpart, Texas Rule of Evidence 803(15) provides an exception to the rule against hearsay for
A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
Federal Rule of Evidence 803(15) and state counterparts are rarely used. I did a Westlaw of 803(15) in ALLFEDS and ALLSTATES and came up with only 26 results in the former database and only 36 in the latter. Moreover, in some of the retrieved opinions, the rule was merely mentioned in passing and not actually applied. I haven't previously written about this rule on this blog, so when I came across an opinion applying it -- the recent opinion of the Court of Appeals of Texas, El Paso in Gomez v. State, 2009 WL 4831117 (Tex.App.-El Paso 2009).
In Gomez, Gregory Gomez was convicted of burglary of a habitation. One of the pieces of evidence that the prosecution used to prove Gomez's guilt was Exhibit Eleven, a computer printout of a "pawn database" entry made by Atlas Pawn for an equalizer allegedly stolen from the burglarized residence. Specifically, "[p]awn ticket number 10076 was located in the pawn shop database based on the equalizer's serial number, and shows the item was pawned at 'Atlas' by 'Gregg A. Gomez.'"
After he was convicted, Gomez appealed, claiming, inter alia, that the exhibit "lack[ed] the type of indicators of reliability required for the document to fall within the 'Document Affecting an Interest in Property' exception under Rule 803." The Court of Appeals of Texas, El Paso disagreed, finding that
Exhibit Eleven was introduced through the testimony of El Paso Police Department property disposition specialist Ida Silva. Ms. Silva testified that she was a member of the department's pawnshop unit, which is charged with monitoring pawnshops for stolen property. According to her testimony, pawn shops have two options for reporting and tracking merchandise; they can report electronically with the department's database or they can use hard copies which are only maintained for one year before they are destroyed.
Atlas Pawn utilized both methods for recording its items. Ms. Silva was not able to locate the hard copy of the pawn ticket for the equalizer as it had been destroyed in accordance with an El Paso records retention schedule. She was able to locate an electronic record of the pawn from the police department's pawnshop database. She testified that State's Exhibit Eleven was an electronic copy of the pawn ticket containing the information recorded by Atlas Pawn when the equalizer was pawned. Pawn ticket number 10076 was located in the pawn shop database based on the equalizer's serial number, and shows the item was pawned at “Atlas” by "Gregg A. Gomez"....Ms. Silva further testified the pawnshop is required to record identifying information for any person who pawns or sells an item by statute in order to verify the identity of people purporting to pawn their own property.
Ms. Silva's testimony provides an adequate foundation for the trial court to have determined Exhibit Eleven was reliable. The document was not "created by Atlas Pawn for use by the El Paso Police Department" as [Gomez] contend[ed]. The data was entered into the computer system by the pawn shop in accordance with Texas law, and transferred to a police database where it was retrieved by a police department employee. In addition, as Ms. Silva explained, the document memorialize[d] [that Gomez] transferred whatever ownership right he had in the equalizer to the pawn shop. As such, the trial court did not abuse its discretion by determining the document fell within the exception presented by the State.