Texas Stamp


PD-0653-20 11/18/2020

“The court of appeals erred in affirming the trial court’s admission of a disc of inmate telephone calls over Appellant’s objection that the State’s witness was not the custodian of records.”

Bahena robbed two people in a car. After one of the victims later identified him, he was arrested and confined to the county jail. At trial, the State called a sheriff’s deputy to authenticate a CD of jail calls. Bahena objected that the calls were not admissible under the business record’s exception (Rule of Evidence 803(6)) because the deputy was not the custodian of records for the jail calls, a private company called “Securus” was. The trial court overruled the objection. The deputy testified that calls from the jail are stored according to each inmate’s assigned number and that, in order to initiate a call, the inmate must enter that number and a personal identification number. On the CD of calls made using Bahena’s two numbers, a male caller can be heard discussing the robbery and an extraneous offense connected to Bahena. Bahena was convicted.

 On appeal, Bahena re-urged his complaint that the jail calls were not admissible since the deputy was not the custodian of records. The court of appeals noted that Rule 803(6) permits business records to be admitted if the custodian of records “or another qualified witness” testified that the exhibit met the three requirements for a business record. Since Bahena never claimed that the deputy was not an “other qualified witness,” it did not matter that the deputy was not the custodian. Bahena failed to demonstrate that the deputy was unqualified, and the trial court did not abuse its discretion in overruling the objection.  

Bahena reiterates that the deputy was not the custodian of records. He also argues that the deputy could not have been “another qualified witness” since there was no evidence that he had personal knowledge of how the jail calls are kept, accessed, or copied. He points out that a different deputy prepared the CD of jail calls for trial and that the testifying deputy only knew that Securus operated the recording system. Bahena contends the record is devoid of any facts from which the trial court could have presumed that the exhibits met the requirements for a business record or that the deputy was qualified to authenticate the calls.

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