Better Evidence Or Best Evidence?: Court Of Appeals Of Texas Botches Best Evidence Analysis In Tampering Case

Similar to its federal counterpart, Texas Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.

And, similar to its federal counterpart, Texas Rule of Evidence 1004(a) provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if….[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith

So, what happens if an original is not lost or destroyed, but the government still does not produce it because it does not want to pay the retrieval fee? Well, then you have a case like State v. Chavera, 2012 WL 4900856 (Tex.App.-San Antonio 2012). So, why did the court is Chavera not reverse the defendant’s conviction?

In Chavera, Baldemar Chavera was charged with tampering with a governmental record. This charge related to Chavera allegedly not indicating on his food stamp application that his wife was receiving unemployment benefits.

Mike Casey, a fraud investigator with the [Texas] Department [of Health and Human Services], was assigned to investigate Chavera’s application after another Department employee discovered a record showing that [Chavera’s wife Michelle] Soliz received unemployment benefits from April of 2009 to December of 2009. Casey testified that Chavera’s case folder did not contain his application. Casey testified that the Department’s documents are routinely sent to a storage facility in Austin. Although Casey asked his supervisor about retrieving Chavera’s application from the storage facility, his supervisor instructed him not to retrieve the application because the Department would have to pay the storage facility a retrieval fee.

According to the court’s opinion

Nora Cruz, a caseworker employed by the Texas Department of Health and Human Services was assigned the food stamp application submitted by Chavera. Cruz had been employed by the Department for thirty-four years and had twenty-four years’ experience as a caseworker. Cruz testified that when she interviews an applicant, she has the applicant’s application present. During the interview, Cruz completes a generic worksheet on her computer.  

The generic worksheet Cruz completed while interviewing Chavera was admitted into evidence. The generic worksheet states that the date on Chavera’s application was June 2, 2009. During the interview, Cruz explained to Chavera the various forms of income that needed to be reported. Cruz testified that during the interview and on the application, Chavera claimed Social Security benefits received by himself and his daughter as his sole household income. Cruz testified that during the interview, Chavera did not inform Cruz that his wife, Michelle Soliz, was receiving unemployment benefits.  

Although Chavera’s case folder did not contain his application at the time of trial, Cruz explained that the Department’s records are routinely sent to Austin for storage and are shredded after a certain number of years. Cruz unequivocally stated that she had Chavera’s application present at the time she interviewed him. On cross-examination, Cruz was asked whether she “actually saw a physical paper application,” and she responded, “Yes ma’am.”

After he was later convicted of the crime charged, Chavera filed a motion for a new trial on Best Evidence grounds, and the court granted it, finding that

I think the Department of Health and Human Services didn’t want to make the effort to locate the document that could have showed us, I think, almost conclusively whether or not this gentlemen, in fact, made a false statement on that application. They just didn’t want to put the effort forth….You know, Counsel, it’s kind of funny because the indictment says made a false entry in a governmental record the State couldn’t even produce at the trial of the case, the record that this gentlemen is accused of making a false statement on….The Health and Human Services and the Department of the Inspector General’s Office feel that they want to pursue criminal cases against people and try to deprive them of their life and liberty, they can certainly make the effort to locate the original application, which they never could produce, and then admitted on the stand they didn’t even make an effort to produce because they didn’t want to spend the money. Apparently, those records are kept with a private entity, and they didn’t want to spend the money to hire that private entity to go in and do an actual search of the records….I just thought it was a real sad day for criminal justice when the Department of Health and Human Services didn’t make the effort to locate a record which could have established this conclusively, or—or—one way or the other in this matter because they didn’t want to spend the money.

Thereafter, the Court of Appeals of Texas, San Antonio, found that there was indeed a Best Evidence Rule violation, holding that

Article X of the Texas Rules of Evidence, commonly referred to as the best evidence rule, requires the original writing to be introduced into evidence to prove its contents absent the application of one of the exceptions listed in the rules….”The best evidence rule rests on the fact that a document is a more reliable, complete, and accurate source of information as to its contents and meaning than anyone’s description.”…One of the reasons the rule was developed at common-law is because parol testimony regarding the content of a writing is susceptible to human error….Although Rule 1004 contains an exception for instances in which the original writing is lost or destroyed, no exception exists for the failure to produce the original writing because the Department did not want to pay a retrieval fee. When the Department and the State take actions that place a person’s very liberty at stake, the Department and the State should ensure that the evidence on which they will rely is admissible under the Texas Rules of Evidence. Although no objection was made based on the best evidence rule in the instant case, the failure to make the effort to retrieve the application upon which this prosecution was based is not to be condoned. If the Department refuses to produce the application to support a prosecution solely based on its unwillingness to pay a retrieval fee, then the State should refuse to prosecute the case….We agree with the trial judge that “it [is] a real sad day for criminal justice” when this type of sloppy prosecution is pursued.

And yet, the court found that Chavera was not entitled to a new trial, concluding that

Constrained by our standard of review and the absence of a best evidence objection, we hold that the jury could have found that Chavera submitted an application that omitted any reference to Soliz’s unemployment benefits based on Cruz’s testimony regarding the application’s contents. This court could probably take judicial notice of the thousands of applications that Cruz is assigned each year which raises concerns about her ability to specifically recall the contents of Chavera’s application; however, the jury is the sole judge of Cruz’s credibility with regard to the contents of the application and the weight to be given to her testimony….Because Cruz’s testimony is legally sufficient evidence to support the jury’s verdict, the trial court erred in granting Chavera’s motion for new trial.

Huh? This makes no sense whatsoever. The entire point of the Best Evidence Rule is that a party cannot prove the contents of a writing, recording, or photograph without producing the original or explaining its nonproduction. According to the Court of Appeals of Texas, however, Cruz could not only testify about the contents of the application, but her testimony was legally sufficient evidence of the application’s contents. Simply put, the court is wrong, and I fully expect a subsequent reversal on appeal.

-CM