Handspur v. State

re- expressed, I would if the reasons taxing attorney’s fees he For him with Therefore, take- the trial court and render a action. the trial takes such verse City of attor- of Port against court must condition award nothing judgment upon appel- appellee not, ney’s fees to an majority does Arthur. Since appeal. An uncondi- lant’s unsuccessful respectfully dissent. appellate attorney’s fees

tional award improper. Sons, Inc., 611 S.W.2d Beck &

Ortiz v. O.J. (Tex.Civ.App. Corpus Christi no —

writ), Optical King v. Automatic Data (Tex.Civ.App.

Processing, 542 S.W.2d n.r.e.) writ ref’d and a recent

—Waco Concrete,

case, King Ready Mix Weaver Inc., HANDSPUR, Appellant, Melvin Earl — Waco writ) rule. all follow the same

THE CLAUSE THE Texas, SAYINGS OF Appellee. The STATE ANNEXATIONS 05-89-00082-CR. No. upholds majority The the trial court’s Texas, that the entire annexation is declaration Dallas. despite following savings clause: void taking any territory If the annexed June 1990. this Ordinance is declared a Court Discretionary Review Granted competent jurisdiction to be invalid Oct. illegal, it and/or shall not affect the bal- property ance of the annexed and at-

tempted property to be annexed and that part

shall remain as of THE CITY OF CITY,

BRIDGE TEXAS. majority requires savings clause to

express “intent to exclude from annexa- an territory over it does not have

tion

jurisdiction.” language The conditional

certainly implies such an intent. It should that simple just

be a matter to exclude from

property within Port Arthur’s ETJ However, state

the ordinance. under the record, impossi- that still was and impossible It is because Port Arthur

ble. de-

provided neither a metes and bounds jurisdic-

scription of their extraterritorial description a metes and

tion nor bounds they portion property of the annexed Consequent- their

claimed was within ETJ. can, day, draft annexa-

ly, no one to this an Bridge City, area

tion ordinance ETJ, Port Arthur’s proximity

within the Port Ar- potentially invade will Thus, court found

thur’s the trial ETJ. themselves on majority

itself and the find simply There was

the horns dilemma.

no alternative other to declare than

entire ordinance annexation void.

convictions for the offenses of theft Appellant use vehicle. unauthorized ap- pled paragraph. each The not true to as- pellant to have the trial court elected punishment, finding the en- sess and after true, punish- to paragraphs hancement thirty years’ at confine- ment was assessed During punishment stage ment. of the trial, admitted exhibits the court State’s object- four. Appellant numbers three exhibits, con- ed to of the admission these tending although penitentiary that by the properly authenticated (now Texas Corrections Justice, In- Texas Criminal Division), copies of stitutional contained felony prior and sentences for au- properly not convictions district the con- thenticated clerk of victing court. McClellan, Hill, appel- Renie Cedar lant. error, point appellant sole In his Walsh, Dallas, for appellee. Kathleen A. (the that exhibits three and four contends packets) not admit should have been C.J., BAKER, J., ENOCH, Before ted, them, insuffi and that there is without ONION1, (Retired, Sitting by J. finding of support cient to evidence Assignment). Ap paragraphs. enhancement true prior pellant argues that the of the OPINION judgments and sentences contained BAKER, Justice. under, properly exhibits were not admitted appellant, appeals Earl Handspur, Melvin 902(4) rule the Texas Rules of Criminal burglary of a hab- from conviction for argues Responding, the Evidence. State punish- itation. trial court assessed admissibility of this evidence ment, convictions, enhanced two governed by rules 901 and 902 of both point In his thirty years’ sole confinement. Texas of Criminal Evidence and Rules error, appellant complains the admis- rules, under this evidence is admissi these pen pack- improperly sion 901(b)(7) and ble. See Tex.R.Crim.Evid. The recent decision Court ets. 902(4). Appeals in v. No. Reed Criminal (Tex. State, 785 v. Reed 9, 1990), (Tex.Crim.App. May is dis- 1990) (Reed I), consid App. after re- in this case. We positive of the issue - Dallas ering recent remand of Rodasti re- verse trial court’s 786 S.W.2d for fur- this to the trial court mand cause (Rodasti II), panel of this Court another this inconsistent with proceedings ther not State, 768 that, light Dingler “in held opinion. (Tex.Crim.App.1989)] S.W.2d 305 FACTS authenticated, properly not admissible under and thus was contained paragraphs Two enhancement 902.”2 Evidence 901 or prior Rules of Criminal appellant’s indictment set forth Onion, originally such Jr., Presiding held that 2. The Houston 1. The Honorable John F. rules 901 Retired, evidence was admissible under Judge, Appeals, sit- Court of Criminal Evidence. Rules the Texas assignment ting by pursuant Tex.Gov’t.Code 749 S.W.2d Rodasti v. (Vernon 1988). 74.003 Ann. 1988) (RodastiI) (remand Dist.] —Houston [1st ENOCH, C.J., opinion. concurs with an Reed, recent at 415. Reed was adopted by per curiam ly affirmed ONION, J., opinion. an dissents with appeals opinion of the court criminal Justice, ENOCH, concurring. Chief (Tex.Crim.App. No. 222-90 Reed v. II).3 9, 1990) (Reed May We hold that strong make the separately write and sen uncertified request Court of Criminal in ease should not have been tence this These ac- actions. reconsider its recent admitted. tions, ostensibly pre-rules follow explain only fail to Dingier, in not decision in the ad Because there was error ignores line of the court’s why Dingier evidence, we must reverse mission of the cases, shrift of rules but make short own judgment unless we deter the trial court’s cursory than a ought given to be more beyond mine a reasonable doubt is tip of the hat. Justice Onion’s dissent punish made no contribution to the error being course. But for the better reasoned Tex.R.App.P. 81(b)(2). Appellant ment. court, hog-tied by superior majori- our habitation, burglary convicted of was too, rules allow admis- ty, believes the new felony. 12.32 of degree first Under section pen in court documents sion of the Code, range punish the Texas Penal packet. life, not more any ment is or for term of years five ninety-nine than or less than (Retired, ONION, Sitting by Justice (Ver 12.32

years. Tex.Penal Code Ann. § Assignment), dissenting. punishment Supp.1990). Appellant’s non Surely, dissent. neither respectfully I thirty years. appellant set at While Ap of Criminal this Court nor punishment range was assessed within Pogo, position in the peals wants be any degree felony set for a first without character, who said: “We have the cartoon enhancement, beyond we cannot determine Yet, that enemy they’re met the us.” a reasonable doubt that the admission of discover if con eventually what we will the uncertified of the sentence and State, homage paid Dingler tinued v. appellant’s prior convictions (Din 768 S.W.2d 305 punishment. to the made contribution II), State, gler as was done Reed v. Tex.R.App.P. 81(b)(2). Appellant’s sole 1990) (Reed (Tex.App. S.W.2d 412 — Dallas point error is sustained.4 I), “adopted” by the which in turn was Appeals in Reed v. Court Criminal We REVERSE the trial court’s 9, 1990) (Tex.Crim.App. May No. 222-90 REMAND this cause to that court for (Reed II) (not yet reported). proceedings further not inconsistent with opinion. Carpenter opinion, this II decided under Dingier See The 1989, 707, 3731a1 of the Texas Revised former article — Dallas Annotated, ref’d); opin- is a flawed art. Civil Statutes Tex.Code Crim.PROC.Ann. is not 44.29(b) (Vernon respect, due it was and Supp.1990). ion. With all I, light Dingler and Reed which eluded uncertified evidence ed for reconsideration in 1989)). pen packet. the entire (Tex.Crim.App. excluded Court, I, interpreted remand to This in Reed this majority only conclusion is so because 4. The not admissible indicate that such evidence was court, we, are bound to fol- as an intermediate that was the under rules 901 and 902 because Appeals Criminal the dictate of the Court of low reasoning Dingier. and conclusion in applies this case. to the facts of as I, opinion 1951, 471, 1, After issuance of the in Reed 8, 3. September § ch. 1. Act of Appeals 831-32, 830, Houston Court of came out with its amended several Tex.Gen Laws opinion "reconsidered” in Rodasti v. repeal Act of before times and last amended Dist.] S.W.2d 379 September [1st ch. § Tex.Gen - Houston (Rodasti III), 666, 667, following Dingier. adopt August repealed by also Act of Laws I, 9(b), ing made Reed the Court Criminal ch. Tex.Gen Laws Evidence, inconsistency between Ro- 2474 and the Texas Rules no mention of II, September effective dasti which allowed the but ex- “sound,” the ment and opinion and the should not be sentence whatever linchpin cases decided under not for future court documents that are in there are Rules of rules 901 and 902 of court documents Despite Evidence. the manufac- grounds.” objection object those opinion, day, turer’s label one Appellant did chal- overruled. not off, use, the will come continued wheel lenge validity convictions particularly will true rules this when nor claim a lack of connection with interpreted contexts 901 and 902 since the same. He contends to self-authentica- respect other than with packets judgments and sentences decided, packets. Din- tion of When the district clerk II with earlier cases gier was inconsistent self-authentication, there was a lack article 3731a as well decided under former sentences, least reasoning and is incon- as flawed also they into were not admissible evidence sistent federal cases decided under proper predicate. absence of evidence, the of federal rules of source presented sharply has very question Rules of rules 901 and 902 of the Texas prop of appeals divided the courts over the Criminal Evidence. application of the Rules of Crimi er urges point appellant In his sole of error Evidence, although theory domino nal the finding the that the “trial court erred vogue to since seems be in current Rodasti allegations paragraphs the enhancement State, (Tex.App v. . —Hous to of the indictment true as the evidence be I) (decided (Rodasti ton [1st Dist.] findings.” to the was insufficient sustain Rules under rules 901 and 902 of the Texas argues Appellant the authenticated Evidence) remanded the pen packets by the State contained offered v. Appeals, Rodasti Criminal judgments and sentences which were State, 294 786 S.W.2d Dallas district clerk of also certified the (Rodasti II), for further consideration County, the where convictions State, 768 S.W.2d 305 light Dingler v. Thus, there appellant contends obtained. II) (decided (Tex.Crim.App.1989)(Dingler probative sup- evidence to was insufficient article of the Texas under former 3731a at port findings penalty the the trial court’s Statutes). Civil While instant Revised stage trial. of the Texas Rules of case is controlled trial, At commenced on appellant’s which Evidence, helpful briefly 1988, State, 7, proving November practice cases decided examine former allegations, duly au- enhancement offered of the Texas under former article 3731a packets2 included pen thenticated Revised Civil Statutes. sentences, fingerprints, photo- judgments, etc., along testimony of a graphs, with the of a The use of certified finger- expert fingerprint that the known and a sentence and authenticated appellant were identical prints of sen- including judgment, prison records pen packet. No other evidence those in the tence, sup- fingerprints, photographs, and was offered. identifying the by expert testimony ported prints known fingerprints as identical with objection, pen pack- Appellant’s when the defendant, offered, has the most com- been “The ets were contents contents, judg- proving prior method of convictions. mon penitentiary not the but This is authenti- appellant question the inmate number. numbers and 2. I do not understand Robinson, packets County Judge pen J. manner of authentication cated Hon. Frank each, Woods certified that County, S.O. themselves. of Walker where Depart- of the Texas located, he was the Record Clerk turn and in Corrections legal custo- that in ment of Corrections and his Patton, County Court by James Clerk of the D. original dy as officer files such County given seal of under the of Walker committed, including persons records photographs, signatures are All three attached the said court. commitments, fingerprints in- proper the attestation certificates cluding judgments of Melvin and sentences place. Handspur giving trial cause Earl court’s

243 State, Littles v. 26, (Tex. proof approved 726 32 ner in earlier S.W.2d cases. See, State, (op. Beck v. Crim.App.1987) reh’g); e.g., Rinehart 463 S.W.2d State, 205, (Tex.Crim.App. 719 S.W.2d 216, 209 Allen v. (Tex.Crim.App.1971); 219 1986). is, however, only It one method or State, (Tex.Crim.App. 451 485 S.W.2d Beck, way proving prior convictions. 1970). merely other cases re Still have State, 719 S.W.2d at 445 pen packet and ferred to an authenticated Brumfield Al (Tex.Crim.App.1969); S.W.2d 740 testimony being fingerprint sufficient State, ridge v. (Tex. 396 S.W.2d judgments express without reference to the App. ref’d). Certainly See, State, e.g., Jones v. - Dallas sentences. normally various methods enumerated (Tex.Crim.App.1971); 470 S.W.2d cannot said to be exclusive means of Graham v. Littles, proving prior convictions. Jackson v. (Tex.Crim.App.1968); Further, proof offered (Tex.Crim.App.1966). may include the use of a combination Nothing of these cases indicated Beck, methods. 719 S.W.2d at 209-10. only copies and sen Copies and sentences have tence certified the district clerk was integral part often been used as an of one necessary to demonstrate self-authentica in conjunction method or offered an tion. other or introduced as additional insurance In Jones v. 449 S.W.2d proof. independent When offered as an (Tex.Crim.App.1970), the authenticated exhibit, Blakes v. packet contained a 320 (Tex.Crim.App. Op.] 1982), it [Panel judgment. sentence not the but The sen must be certified a district clerk or a pronounced tence it reflected had been “in deputy if it is to be self-authenticated. judgment accordance with the verdict and State, Todd v. 286, (Tex. 598 S.W.2d 292 herein rendered and entered.” In absence Crim.App. 1980); Speights v. Op.] [Panel showing contrary, of a to the pre it was State, 119, (Tex.Crim.App. 499 S.W.2d 122 sumed that the sentence was on a based 1973). judgment, proof and the lack of claim was copies When certified judgment of a State, overruled. See also Thornton v. sentence authenticated records of 407, (Tex.Crim.App. 576 S.W.2d 408-09 the Texas of Corrections or State, 1979); v. 553, Chesteen 712 S.W.2d penal other institutions have been used to (Tex.App. 554-55 [1st Dist.] - Houston prove prior convictions, these documents 1986, ref’d) (fact pet. Oregon peniten have been held admissible under whatever tiary packet containing page entitled “sen version of former article 3731a was in ef copy tence” did not contain did fect at the time of the defendant’s trial. not render insufficient for enhance Beck, State, Phillips 210; v. 719 S.W.2d at purposes). ment 116, 538 (Tex.Crim.App.1976). S.W.2d 118 State, v. 485, Kanaziz 382 486 S.W.2d proof When such method of has been uti (Tex.Crim.App.1964), the defendant con- see, along lized fingerprint testimony, tended that it was error for the trial court Beck, e.g., Vessels v. 719 S.W.2d at Michigan to have admitted a State, 108, 432 (Tex.Crim.App. S.W.2d 117 sentence, prison commitment and records 1968) (op. State, Roberts v. reh’g); on 164 including fingerprints. Each document 537, 154, (1957), Tex.Crim. 301 S.W.2d 155 supervisor prison was certified independent has not been said that judge records and authenticated judg exhibit of the certified clerk of the Circuit Court Jackson Coun- part ment and sentence was an essential ty, Michigan, in the proof. same manner as that method of have Other cases Ap- instant case. Our Court of Criminal pen packets referred to con authenticated taining peals “This deem to wrote: we strict along compliance sentences with the terms of 3731a expert fingerprint article appel- to meet the V.A.R.C.S. We no merit testimony being sufficient find requirements of article 3731a and the man- lant’s contention that sentence 244 837, (Tex. State, 844 634 should have been attested condo v. S.W.2d

commitment (op. reh’g); Crim.App.1982) Ka see also Tex. convicting court.” the clerk of added); and 43.11 naziz, (emphasis at 486 CRIM.Proc.Ann. arts. 42.09 382 S.W.2d Code 302, State, (Vernon Supp.1990). Ashley v. 1979 527 S.W.2d see also Rodriguez v. (Tex.Crim.App.1975); 304-05 Thus, the fact 789, State, (Tex.App.— 706 S.W.2d 790-91 sepa pen packet were not sentence 1986), dism’d, pet. Antonio 745 S.W.2d San by the district clerk rately certified State, (Tex.Crim.App.1988); v. 353 Cobb pre convicting court held not has been 276, (Tex.App. Corpus S.W.2d 278 655 - pen packets admission clude the 1983, pet.). no Christi Depart by the record clerk of the State, 677 814 ment of Corrections and Evans v. County. 1984, judge since and clerk of Walker pet.) held that

—Fort Worth no (Tex. State, 877 properly attested v. 720 S.W.2d the entire Johnson pet.); authenticity, App. of the au no Garza v. proof as to - Texarkana 820 thenticity of each contained 705 S.W.2d document - San pet.). including the the Court Antonio mandate of therein necessary for was not terminating any discussion of Before Evans, 677 compliance with article 3731a. 3731a, decided under former article cases Further, at 820. the contention in Din taken the decision note must be of the Texas that authenticated records (Tex.App.— 723 S.W.2d gler v. copies of Department of Corrections were dism’d, I), (Dingler Tyler originals has been copies and not (Dingier rejected. Dagley 394 S.W.2d II). of much of the This case the source denied, (Tex.Crim.App.1965), cert. apply attempting confusion in present 86 S.Ct. 16 L.Ed.2d U.S. Texas Rules of Criminal Evidence. (1966); Warden alleged for Three convictions denied, 375 (Tex.Crim.App.), cert. punishment Dingier. enhancement S.Ct. 11 L.Ed.2d U.S. in assess court utilized one The trial (1963). the court of ing punishment. appeal, On hearing State, 385, appeals 397 remanded for a new In Love v. 730 S.W.2d the 1987, finding that pet.), punishment, the while (Tex.App. Worth no - Fort authenticated, judg the duly packet” held to be was “pen Mexico was New not shown 4 of ment and sentence therein under section properly authenticated clerk, by the district The claimed that to have been 3731a. defendant article having legal agency contained custodian the fingerprints photograph and a the 4 section custody New of the records under in fact the had been taken therein I, 723 S.W.2d at Dingler 3731a. Police that certification article Mexico State language in upon court The relied organization, not the Central 808. by that 292-93, although Todd, 598 S.W.2d at penitentia Unit of New Mexico Record contention, certi in Todd was judgment and sentence Rejecting such ry, was needed. issue the district and the was requirement fied clerk stated: find no the court “We to sustain 3731a, sufficiency of the evidence the custodi 4 that in article section Todd, punishment. 598 the enhanced the methods explain an records] [of specifical not 291-93. Todd did Love, at obtaining the 730 S.W.2d S.W.2d records.” by the proof of certification ly hold that at necessary to was district clerk essential inmates knowledge that It is common pen packet. authenticate accepted at Texas granted Appeals of Criminal of the The Court copies without certified Corrections discretionary review petition felony for showing a the State’s and sentence judgment Tyler determine whether conviction, expressly then become papers holding had miscon Appeals in Department of Cor Court records of the official II, at 768 S.W.2d 320; Dingler Blakes, Ri strued Todd. 634 at rections.

245 pe pen packet separate did not eventually 305. That court decided the cated bear improvidently granted dis clerk of the tition was certification from district court, doing Rodasti, in convicting missed it. so the an 749 S.W.2d at court. move, 901(b)(7) opinion wrote an unusual see also Tex.R.CRIM.Evid. Regrettably, 902(1), issue. the court did not con (4). did what strue Todd. Court observe in The decision Rodasti was followed observe, appeals the court of had failed to 563, State, (Tex. 772 S.W.2d Davis v. namely, that while the State, App. pet.); Redd v. - Waco pen packets were not certified the dis 768 S.W.2d — Houston clerk, trict the sentences therein contained 'd); pet. Wyble ref [1st Dist.] were certified. This would authorized have State, (Tex.App.— 930-31 764 S.W.2d the admission of the in the one 'd). pet. Amarillo ref See Barber v. conviction used the trial court un State, (Tex.App 157 S.W.2d . —Hous der the decisions in Thornton v. ref’d) (noting ton [14th Dist.] (Tex.Crim.App.1979), pen packet bearing the seal of the 449 S.W.2d Jones court, county an attestation the TDC (Tex.Crim.App.1970),earlier noted. How records clerk that the documents contained ever, authority, without citation of the Din origi therein were certified gler opinion II applying added “cases arti nals, clerk, signatures and the of the record required cle 3731a clerk, county presiding judge and the properly sentence both be certified.” Din county court authenti were sufficient II, gler (emphasis 901(b)(7) 902(1)). cation under rules original). Neither Kanaziz or Strangely, although the issue was earlier cases discussed ex were mentioned same, re Blakes, cept 634 S.W.2d at 319. In foot petitions discretionary fused the review two, Dingier opinion sought note II later, Wyble acting upon and Redd but distinguish Blakes, upon by relied the dis petition, an earlier filed remanded Rodasti sent, on the basis that there was other appeals I to the court of for further consid evidence in Blakes to reach the same result light of Dingler eration II. Rodasti v. upon recognized pre without reliance “the sumption the Texas (Rodasti II). Corrections does not admit inmates without The reason for the remand is somewhat and sentence.” True, conflict, the cases are in obscure. II, gler Din 768 S.W.2d at 306. II decided Dingier but under the for- In the time Dingier slot between I and mer statute and was inconsistent with II, Dingler the decision in Rodasti v. law, much the earlier case and Rodasti I [1st - Houston decided under the Rules of 1988) (Rodasti I) was reached. The Dist.] adopted by the of Criminal Evidence Court upon defendant there relied article 3731a Appeals, principal the Criminal source of Dingier Duggan, I. Justice in a well the Federal Rules of Evidence. was court, opinion reasoned pointed the out may Some envision the remand as the rais- repealed article 3731a had been ing flag Dingier many of the II to see how I, Dingier noted that which was based on rates, the of salutes it before Court Crimi- statute, such was in direct conflict with Appeals definitively nal writes on rules 901 cases, earlier reliance upon its Todd of and 902 of the Texas Rules Criminal was flawed. The court held that under the apparently heard Evidence. Others have applicable now rules 901 and 902 of the in the streets and on the rumble of tanks pen Texas Rules of Criminal Evidence the engaged arm-jerk in the horizon and have question self-authenticated, in was salutes. Dingier” “Heil and thus admissible into evidence at the II, trial, Tyler penalty stage though Relying upon Dingier the Court of the even the interpreted language Appeals of the and sentence of the of rule the of 902(4) allowing by contained in the certification “the custo- conviction authenti- Rodasti Following by to make the remand person or authorized dian other only legal “the appeals the certification” to mean in II the threw Rodasti court original of the doc custodian of the the towel. Rodasti v. Thus, with this restrictive inter uments.” 1990) Dist.], [1st — Houston judg court held that the pretation, III). II, (Rodasti Bowing to Dingier in a duly authenticated ment/sentence and remanded court withdrew Rodasti I, inadmissible since it not packet was was hearing. punishment the cause for a new additionally by shown to certified State, 788 Henderson v. King v. district clerk. 1990)(pet. Dist.], [14th (Tex.App. Tyler, pet. pending on - Houston — acknowledged it pending), the Court was grounds). holding This its other carried to by authority of the Court logical conclusion would mean that the “bound duly pen packet contents of a Appeals” Dingier and was Criminal in II admissible, being that would be as self-au I and the withdrawal influenced Reed thenticated, original to would be contents the same court concluded Rodasti I. penal itself. Each other doc institution article 3731a as result is reached under carry ument would have to the ad therein Rules Dingier II under interpreted clerk, judge, pro ditional certificate of the point error and sustained officer, may or another as the case bation admissibility pen packet” of the as to “the apply This all of the doc be. would judgment and sentence because required uments be furnished clerk.3 not the district also a Department of Corrections before defen opinions Appeals Court of With required by 42.- is admitted as article dant along question, of the came both sides of the Code of Criminal Proce dure, petition an appel Having granted as from II. well as mandate Reed art. I, Appeals late court. TexCode CRIM.PROC.Ann. the Court of Criminal Reed (Vernon Supp.1990). 42.09 page opinion one down a brief handed simply “We which it stated: have reviewed panel King’s A followed of this Court its Appeals’ opinion find 902(4) rewording concluded of rule State, 768 reasoning Dingler v. sound. reliability is there no assurance of (Tex.Crim.App.1989). We copy judgment/sentence absent adopt opinion our own convicting by the clerk of the therefore certification brushed aside rule 901 panel court. The further comment.” Reed without is satisfied (providing May that authentication (Tex.Crim.App., No. 222-90 finding supporting evidence that the (Reed II). (not yet reported) claims) proponent matter what then, This, majori- opinion is the regarding reliability. The same concerns case, ty dispositive of the instant but finds I, panel, noting the remand of Rodasti adoption of Reed I seems quickie hold, light Dingier [II], wrote: “We by a case- without a home visit have been that because the opin- review one More than the worker. had provided the TDC not been sentence opin- II adhering Dingier ion to the flawed convicting by the clerk of the ion needed. The Texas Rules of Criminal court, properly Evidence, promulgated by the Court authenticated, thus not admissible than more promise Criminal holds Evidence under Texas Rules statutes, rules, and applicable this. State, 785 or Reed v. S.W.2d 901 902.” to as looked federal decisions should be 415 - Dallas guidance. I). (Reed granted) Henderson, majority 3 of the to Reed Footnote Reed I follow II. It is that while observed inadmissible, inconsistency opinion Reed and King appeared II hold does observe yet to hold to has the Court of Criminal any opposing party An complying proponent of this rule or stat- claims. prescribed pursuant conflicting ute or rule to evidence and the court can offer Thus, authority. may accept it true. statutory as factfinder the some of self-authentication lift Tex.R.CRIm.Evid. 902. proponent burden the usual from 902(1) 902(4) 901(b)(7), or Neither rules oppo- inhibiting an evidence without require that documents “re- evidence the offering conflicting nent evidence. from public or in a office be corded filed” certi- MARTIN, RULES S. & M. FEDERAL SAITZBURG filing. prior recording Arti- fied to the (5th 1990) ed. 506-07 Manual, of Evidence pertaining cle 42.09 to the documents that BRAUN, Dix, added). (emphasis E. K. G. by must be received the director before E. D. R. Gellhoen, Meisenholder, Kaye, Department of admission to the Correc- Roberts & J. Strong, on Evi- McCormick tions, to any silent as certification (3rd ed. finds 228 at 700-711 dence, of those documents. Tex.Code CRIM. Cf. approach this a “common sense to be (Vernon 1979). is, PROC.Ann. art. 43.11 It long might well be overdue and [which] however, knowledge common that a con- extended....” victed defendant not admitted without Darveaux, In 830 F.2d receiving the a States v. Corrections United Cir.1987), duly (8th prosecution under the copy judgment/sentence a county Criminal Act by the district clerk of the where Armed Career felony requires government prove that the and that the conviction was obtained conviction, prior felony a copy part of the in- defendant had such then becomes a copy mate’s official record court held that defendant’s Blakes, 320; Corrections. 634 S.W.2d at Texas criminal conviction record Ricondo, department 634 S.W.2d at as correct corrections self-authenticating ad clerk was a record While Texas courts are not bound since an under Rule 902 it was missible decisions, it federal court has been lower law, and, record” under Texas “official since the federal rules and observed that such legal custodian of clerk was rules the Texas civil and criminal of evi Darveaux, 830 F.2d at see records.4 similar, strikingly dence are identical Vidaure, 861 F.2d States v. United opinions, if cf. harmony there should be Cir.1988), denied, (5th cert. given to con possible, with deference — U.S. -, 103 L.Ed.2d S.Ct. struction of the federal rules federal (1989)(holding exem that certified and courts. Rodda plified copies of defendant’s convictions [14th Dist.] — Houston in his of documents contained 'd). pet. ref circumstances the Under from “pen packet” obtained TDC and the commentaries federal decisions under hear properly admitted evidence courts thereof furnish Texas some should records). say exception public guidance. F.2d 77 danger Dancy, is little fraud United States v.

Since there (5th Cir.1988), prosecution for possession a nine classes respect first [un- felon, copy tangible of a firearm a der Rule documents 902] by a state packet kept on the defendant things, change not threaten should (in- (California) corrections' department of truth-finding of the Courts. function that a correc- cluding criminal judgment) does not That evidence is authenticated to be tions official certified accepted mean it must be valid that legal custody original packet in her signifies a factfinder. Authentication under Rule held properly has proponent that the the evidence at 79. The court 902(4). Dancy, 861 F.2d explain or to enough identify done argument defendant’s rejected the justified the trier to be the evidence for no evidence is what the there was finding evidence and sentence in 4. holding not turn fled in Darveaux did independent an exhibit of certi- record. fact there was actually public or filed “in against recorded a the need for evidence balanced expense. meritless since the rule office” as does not time or “official contemplate that records” must be Schleuter, Wendorf and of Rules public filed or recorded a office to be 1988). (2nd pp. 4-5 ed. Manual, Evidence self-authenticating. applied The rules are not to be wooden just A formalism at the cost result. Beason, In United States v. 690 F.2d 439 degree interpre flexibility reasonable Cir.1982), (5th denied, cert. 459 U.S. tation seems essential. See United States (1983), 103 S.Ct. 74 L.Ed.2d 1023 Lopez, v. Jimenez 873 F.2d Fifth Circuit Court of Appeals held that (5th Cir.1989) (a question of authentica having legal certification the “officer tion); Bibbs, United States v. 564 F.2d custody of the require record” satisfies the (5th Cir.1977), denied, cert. ments of Federal Rules of Evidence U.S. 98 S.Ct. 56 L.Ed.2d 388 and custody that extrinsic evidence of and (1978). The rules favor the admission of delegation necessary is not where there evidence. signed public is certificate officer having legal custody actual of the doc While the use of and Beason, uments. 690 F.2d at 444. “We clerk, sentences certified the district find no requirement in the rule that such independent either as an exhibit within actual custodian of the records also secure recommended,6 packet, certainly certification(s) further delegation I duly would conclude that the authenticat- authority custodial down from the head of ed in the instant case prop- department agency erly 901(b)(7) entrusted law admitted under rules custody 902(1),(4) with the of the documents.” Bea and that the suffi- evidence was son, Accord, support allega- F.2d at 444. cient to Evans v. enhancement tions of the respectfully indictment. dis- (Tex.App. - Fort sent, hope with the fervent pet.); Worth the Court Reed I and II. cf depth will take an in background, With this note should be question look at the of self-authentication taken of Texas Rule of Criminal Evidence under it Rules own of Criminal Evidence. (Purpose Construction) which is the same as the Federal Rule.5 “Rule 102 ostensibly a ‘rule of liberal’ construc- applicable

tion to all the Rules of Evi-

dence.” 33 Goode, Sharlot, WellboRN and

Guide to The Texas Rules of Evidence: (Texas Criminal, 102.1 Practice Civil 1981).

This Rule ^[102] implicitly assumes that may problems

there interpretation be

but reminds both counsel judges purpose behind the Rules. Whether not, many

stated or of the other Rules

represent balancing interests, e.g., provides: 5. Rule 102 may issue involved herein lie at the feet of the Apparently, These rules shall of Corrections. when be construed to secure administration, pen packets prepared fairness elimination of un- are at the justifiable expense delay, promotion Corrections, the face of the documents growth development the law photocopied, reflecting the certification may evidence to the end that the truth appears the district clerk which often proceedings justly ascertained and deter- flip side of the and sentence. See mined. (Tex.App.— Henderson v. 1990, n.p.h.). Dist.] Houston [14th 6. See Davis v. 772 S.W.2d at 570. Part of problem raising behind the rash of cases notes major- does the inadmissible as sentence therein ity the same. resolve though purports opinion instant case 247 pro- Texas Rule of Criminal Evidence always provided Article 42.09 has for part: vides in admission Department to the of Correc tions on the basis of a commitment as did (a) requirement General Provision. The forerunner, article 775 of the 1925 Code of authentication or identification as a pointed Criminal Procedure. out Todd precedent condition admissibility that attestation to the “commitments” by satisfied sup- evidence sufficient to generic was a judgments one and included port finding question that the matter in Todd, in pen packet. sentences proponent is what its claims. copies S.W.2d at 292. We know that (b) By way Illustrations. illustra- judgments, sentences and commitments are only, tion by way limita- by “authorized law to be recorded or filed” tion, following examples are of au- Department at the of Corrections and are thentication or conforming identification “in fact recorded or in public filed” requirements with the of this rule: Todd, office. See Gro

Notes

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[*] gan v. Therefore, pet.). —Dallas evi (7) reports. Public records and Evi- dence that those or documents there writing dence that a by authorized law to public of are “from the office items where be recorded or filed and in fact recorded kept” this nature are constitutes suffi office, public or filed in a purported or a 901(b)(7). compliance cient with rule public record, report, statement, or data compilation, form, any is from the Evidence that and sen- public office where items of this nature tences were from the of Cor- kept. rections files could come the form of oral testimony from the record clerk himself. added). Tex.R.CRIM.Evid. 901 (emphasis Handy See 160Tex.Crim. Article 43.11 of the Texas Code of Crimi- 195-86 (Tex.Crim.App.1954). nal (authority Procedure imprisonment) This, course, practical is not in a state provides for copy a certified shepherd- size of Texas. Without the and sentence as authority sufficient im- ing angel authenticating witness, of an doc- prison a defendant. Tex.Code CRiM.PROC. uments accepted will be into evidence (Vernon 1979). art. 43.11 The current Ann. simpler practical and more method: self-au- version of article 42.09 section thentication. Rule 902 of the Texas Rules Texas Code of Criminal provides Procedure Evidence, dealing with self-au- that a defendant shall be admitted to the thentication, provides part: Department of Corrections on the basis of authenticity Extrinsic evidence of as a a commitment. Tex.Code CRIM.Proc.Ann. precedent condition admissibility is not 42.09, (Vernon art. Supp.1990). Section required respect following: to the 8(a)(1) (2) provides article 42.09 (1) Domestic Public Documents un- the county transferring a defendant to the bearing der seal. A document a seal Department of Corrections shall deliver to purporting any to be that of ... state ... copy and, judgment, director a if or department, agency of a ... officer or applicable, copy revoking order thereof, signature purporting and a to be probation imposing sentence. Section an attestation or execution.... 8(a) (c) provides pa- for certain other

[*]

[*]

[*]

[*]

[*]

[*] pers, reports and statements to be deliv- 8(b) (4) ered to the director pro- public and section Certified records. vides that the defendant shall not report be taken A of an official record or custody therein, at the entry Correc- or of a document autho- tions until the aforesaid documents are re- rized law to be recorded or filed in a office, ceived the director. public The documents ... certified as correct then become the official records of the person the custodian or other authorized Department Corrections and the record to make the certification certificate clerk (1), (2) (3) their custodian. complying paragraphs

Case Details

Case Name: Handspur v. State

Court Name: Court of Appeals of Texas

Date Published: Oct 3, 1990

Citation: 792 S.W.2d 239

Docket Number: 05-89-00082-CR

Court Abbreviation: Tex. App.