Simmons v. State, 564 S.W.2d 769 (Tex. Crim. App. 1978). · Go Syfert
Simmons v. State, 564 S.W.2d 769 (Tex. Crim. App. 1978). Cases Citing This Book View Copy Cite
22 citation events (17 in the last 25 years) across 2 distinct courts.
Strongest positive: Damon Gomez v. the State of Texas (texapp, 2025-07-30)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) Damon Gomez v. the State of Texas
Tex. App. · 2025 · confidence medium
April 2 The Court of Criminal Appeals has held that if the proper predicate is laid then the business record exception to the rule against hearsay applies and a witness without personal knowledge of the events recorded “could testify from probation departments records.” Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim.
cited Cited as authority (rule) Xavier Estrada v. the State of Texas
Tex. App. · 2023 · confidence medium
Norman v. State, No. 13-10-00017-CR, 2011 Tex. App. LEXIS 5391 , at *5–6 (Tex. App.—Corpus Christi 2011, no pet.) (citing Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim.
cited Cited as authority (rule) Kristopher Rodriguez v. the State of Texas
Tex. App. · 2021 · confidence medium
Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim.
discussed Cited as authority (rule) Kristopher Bluntzer v. State
Tex. App. · 2012 · confidence medium
Id. (citing Simmons v. State, 564 S.W.2d 769, 770 (Tex.Crim.App. 1978)). 6 In the case before the Court, Buchanan testified that: 1) she was the custodian of the records in question, 2) that the records were kept in the normal course of the Community Supervision department’s business, 3) the entries were made by someone who had knowledge of the records, and 4) the entries were made at or near the time of occurrence.
cited Cited as authority (rule) Kristopher Bluntzer v. State
Tex. App. · 2012 · confidence medium
Id. (citing Simmons v. State, 564 S.W.2d 769, 770 (Tex.Crim.App. 1978)).
cited Cited as authority (rule) Anthony Norman v. State
Tex. App. · 2011 · confidence medium
Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim.
cited Cited as authority (rule) Brian Alonzo Ford v. State
Tex. App. · 2011 · confidence medium
Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim.
discussed Cited as authority (rule) Canseco v. State
Tex. App. · 2006 · confidence medium
Simmons v. State, 564 S.W.2d 769, 770 (Tex.Crim.App.1978); see also Dodson v. State, 689 S.W.2d 483, 485 (Tex.App.-Houston [14th Dist.] 1985, no pet.) (holding that, where proper predicate is laid, probation file is admissible as business record).
cited Cited as authority (rule) Robert Canseco v. State
Tex. App. · 2006 · confidence medium
Simmons v. State , 564 S.W.2d 769, 770 (Tex. Crim.
discussed Cited "see" Jamie Michael Brown v. the State of Texas (2×)
Tex. App. · 2023 · signal: see · confidence high
See 4 Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim.
cited Cited "see" Jackie Mae Cornwell v. State
Tex. App. · 2015 · signal: see · confidence high
See Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim.
cited Cited "see" Contreras, Lazaro v. State
Tex. App. · 2013 · signal: see · confidence high
See Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim.
cited Cited "see" Gutierrez, Matthew v. State
Tex. App. · 2013 · signal: see · confidence high
See Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim.
discussed Cited "see" David Jason Mena v. State
Tex. App. · 2013 · signal: see · confidence high
See Simmons v. State, 564 S.W.2d 769, 770 (Tex.Crim.App.1978); Canseco, 199 S.W.3d at 440 ; Dodson v. State, 689 S.W.2d 483, 485 (Tex. App.—Houston [14th Dist.] 1985, no pet.) (holding that, when proper predicate is laid, probation file is admissible as business record).
discussed Cited "see, e.g." Brandon Lee Burchfield v. State
Tex. App. · 2011 · signal: see also · confidence medium
See Melendez, 194 S.W.3d at 644 ; Conseco v. State, 199 S.W.3d 437, 440 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (noting that the requirements of rule 803(6) are met so long as the testifying witness has personal knowledge of the recorded information); see also Simmons v. State, 11 564 S.W.2d 769, 770 (Tex. Crim.
Retrieving the full opinion text from the archive…
Richard Charles SIMMONS, Appellant,
v.
the STATE of Texas, Appellee
57366.
Court of Criminal Appeals of Texas.
Apr 19, 1978.
564 S.W.2d 769
1978 Tex. Crim. App. LEXIS 1120
Howard B. Law, Dallas, for appellant., Henry Wade, Dist. Atty., Ronald D. Hinds, Les S. Eubanks, Jr. and Paul D. Macaluso, Asst. Dist. Attys., Dallas, for the State.
Roberts, Odom, Davis.
Cited by 25 opinions  |  Published

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. The court assessed punishment at 22 years.

The record reflects between 9:00 and 9:15 p. m. on May 4,1975, Marilyn Ragsdale was employed as the manager of a Dairy Queen in Dallas County. She observed three males walk past the drive-in service window, hesitate, and then proceed around the front of the building and enter through the front door. One of the three, identified as co-defendant Jessie Gay, went immediately to the restroom area in back. Another went directly to the drinking fountain. The third, identified as the appellant, approached the witness and employee Jennifer Wilson at the service counter. After placing his order, the appellant pulled a gun and said, “Just be cool.” He ordered the cash drawer opened and the money be removed. Jessie Gay, who had gone to the restroom area, left the store and stationed himself near the drive-in window and appeared to be acting as lookout. During the course of the robbery the appellant stated to Ragsdale, “I have a monkey on my back, $100 a day.” ' After the robbery, the appellant, co-defendant Gay, and the third man all fled together. „

In three grounds of error, the appellant alleges that the trial court erred in allowing Charles Pierce, the unit supervisor for the probation department of Criminal District Court No. 5 of Dallas County, to testify that on the basis of the probation department’s records the appellant was a heroin user.

The appellant had taken the stand in his own defense and testified that he was at home with his wife at the time the robbery occurred. He denied any dependency on narcotics or any use of narcotics. Barbara Simmons, the appellant’s wife, supported his alibi and on direct examination denied her husband used narcotics.

The complaining witness had testified that during the course of the robbery the appellant stated, “I have a monkey on my back, $100 a day.” The appellant and his wife had both denied the appellant used narcotics. Appellant’s statement made while he was not under arrest or in custody to the probation department inconsistent with his testimony in court was admissible for purpose of impeachment. See Cunningham v. State, 488 S.W.2d 117.

This Court has consistently held that the Texas Business Records Act, Art. 3737e, V.A.C.S., is applicable to criminal cases. Coulter v. State, 494 S.W.2d 876; Dalton v. State, 516 S.W.2d 937. The cases hold that this exception to the hearsay rule is to be liberally construed, provided the proper predicate is laid. Coulter v. State, supra; Morgan v. State, 503 S.W.2d 770; Williams v. State, 508 S.W.2d 83.

Pierce testified that he was unit supervisor of the probation department and that the records were kept in the regular course of business. He also made it clear that although he did not have personal knowledge of the entries, the personnel who made the entries did have personal knowledge of the facts therein. Pierce related that the statements in question by the appellant were made as part of probation interviews and that the entries were made on a day-to-day basis after the interviews. According to Pierce, the probation officer questions every probationer in every report about the use of drugs and appellant’s probation record reflected, “He admitted using drugs several times and also the use of heroin.”

The proper predicate was laid whereby Pierce could testify from probation department records that appellant had admitted narcotics use to the probation department. Art. 3737e, V.A.C.S.; Morgan v. State, supra; Coulter v. State, supra.

[*771] No error is shown in the admission of the complained-of testimony.

The judgment is affirmed.