IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-75,479

DEMETRIUS DEWAYNE SMITH, Appellant v. THE STATE OF TEXAS ON DIRECT APPEAL FROM CAUSE NO. 1021168 IN THE 183RD DISTRICT COURT HARRIS COUNTY K EASLER, J., filed a concurring opinion.

CONCURRING OPINION I join the Court’s opinion with the exception of its resolution of points of error eighteen and nineteen.1 I would hold that State’s Exhibits 73 and 74, the TDCJ-ID penitentiary packets containing disciplinary reports and hearing records concerning Demetrius Dewayne Smith’s past prison conduct, are business records that do not constitute

Russeau v. State, 171 S.W.3d 871, 887-88 (Tex. Crim. App. 2005) (Keasler, J., dissenting.). testimonial hearsay under Crawford v. Washington.2 The analysis set out in Ohio v. Roberts 3 controls, and because the records fall within a firmly rooted hearsay exception, Smith’s rights under the Confrontation Clause were not violated.

DATE DELIVERED: May 6, 2009 PUBLISH

541 U.S. 36 (2004). 448 U.S. 56 (1980).