*1 рoint ninth in matters which should considered is judgment reversed and as con- sustained and the earning capacity connection the trial court. inca- remanded to partial in the instruction tained pacity given the court. only “partial incapacity,”
court’s definition of submitted, it instruc-
but as an alternative
tion, incapacity” “partial definition
requested “earning capaci- a definition
ty.” The trial court overruled the objections and denied the HARRIS, Appellant, Ivory Renard instructions. is given is but If a definition Texas, Appellee. STATE of defective, under Tex.R.Civ. claimed to be 01-81-0462-CR. No. pre objection is the means Pro.Ann. objection serving complaint. Such Texas, Court point distinctly matters to which out Dist.). (1st Houston objec objects grounds one and the 22, 1982. April sub supra. A tion. Rule in Part and Rehearing Denied alternative mission is not available 1982. Part Granted objection out a de pointing as a means of in, a sub complaint to preserving fect Discrеtionary Review Refused City of mitted definition or instruction. 13, 1982. Oct. Priola, Dallas v. 150 Tex. In (1951); Lyles Employer’s v. Texas (Tex. Association,
surance e.). Only n.
Civ.App. ref’d r. — Waco is if an instruction omitted complaint.
prerequisite preserving 279.
Tex.R.Civ.Pro.Ann. sufficiency objection the standards gauged instant case Company
set Select Insurance (Tex.1978),where
Boucher, 561 S.W.2d def approved the Supreme
the Texas as drafted “partial incapacity”
inition of Charges and held Jury Pattern
the Texas comports with the intent Act. The Court Compensation
Worker’s “earning capaci
further held that the term meaning and
ty” has a somewhat technical
is essential to a determination
partial incapacity.
Therefore, com to be asserted
plaint as to the elements objection, properly preserved
omitted is requested definition supra, Rule 274 Plummer, Hous- Bradshaw, J. form, Hugh Don is in correct “earning capacity” ton, supra.
Rule 279 *2 Titus, Houston, the of appellee. Hopkins, Alvin M. for a witness. In of held that “invasion Court BASS, Justice. province of the rule” is An jury overruled. give expert opinion witness re- This is a for an from conviction ulti- gard to issues which must be decided aggravated robbery. jury returned a long criteria mately jury as as three verdict en- guilty. of The court found the 1) true, expert qualified are met: must be hancеment and be sen- 2) subject testify; testimony of the appellant tenced the to not less than fifteen opinion nor more twenty-five years imprison- expert than one which an must be decision; and, 3) ment. jury in its aid a expert legal not state conclusion. 2, 1980, On May the afternoon of complainant, day manager shift of decide, Hopkins The Court went on restaurant, gone to Jack-in-Box a near- althоugh testimony that of a change bank to some get roll dollar se be- psychiatrist per is not inadmissable bills. As she was into the backing parking province it jury, cause it invades the space at the restaurant she noticed a brown inadmissible in most instances for four-door pulling car in on other side ration- impeachment purposes. The Court’s her truck. The came from ale aswas follows: truck, cаr to pulled the driver’s side of principle regard fear in this is that Our gun, put up complainant’s face, to the psychiatric testimony admission said, money, give “Give me all me will trial often cause the to become you what in your purse.” have gave defendant, only a trial of the but also a him purse, money from her $50.00 trial of the witness. If one calls a side bag belonged which to the Jack-in-the-Box impeachment purposes, psychiatrist restaurant. The ordered the com- duty side will feel to do other bound plainant out of the truck told her (and so). rightly likewise run, which she did. likely will be delay, The result confusion error, In his first trial, principal issues of the asserts that trial court erred when it to the expense parties. failed testimony to allow into witness, expert Kenneth psychiatry The state of is such it is Ph.D., R. Laughery, who morе art than a science. There exists the defense to testify about the human deal great divergence opinion memory processes give and to among qualified learned eminently whether could remember profession. men of the and correctly identify their brief encounter. The court felt that Dr. Laughery’s testimony would invade jury subjected Often the would be
province jury, fact, trier of conflicting opin- witnesses inexact decide the credibility complainant’s ions, minimal the value of would be testimony. Laugh- He refused to allow Dr. enabling the issue of jury decide ery to testify but he did credibility. allow the expert testify before the court. jury felt that the not be the psycholo- asserts that psychiatric impeach left unaided without gist’s testimony would have aided the impeach testimony ment becausе usual evaluating complainant’s identifica- evidence, prior such as inconsistent tion of convictions, is still statements and criminal to aid in determi Hopkins (Tex. available Cr.App.1972), Ap credibility. Also see Court of Criminal nation of witness’s (Tex.Cr. peals carefully analyzed the issue of the use James expert testimony psychiatric impeach App.1977). person. from the same used persuasive аrgument which can State There is admitting made the Exhibit this identification psychiatrist an expert psychologist packet. was a provided following additional revealed that packet (1) he imposed: strictive conditions are previously for offense been convicted *3 his of to the apply expertise must factors in the robbery, alleged as was aggravated examination; (2) he must by witness fоund the enhance- indictment. The Court apply the that occurred dur- circumstances be true. portion of the indictment ing testimony; witnesses’ event Appeals has held (3) his psychological he must limit eval- alleged consistently prior a conviction that thereupon uation that prognosis or testi- by for enhancement be established However, mony. this court bound of a certified introduction into Hopkins, and follow the rule announced in and sentence copy prior judgment of the in this was cause the court’s denial based Department of upon predicate by that records of Texas of the province invade the includes (a packet) which pen Corrections decide of the witness’s testi- finger- defendant. The fingerprints of the impeach- mony, upon predicate not of be identified prints packet pen on Therefore, rule applying ment. that to known by expert witness as identical an bar, facts of case trial court did Vessels v. prints of the defendant. excluding its not abuse discretion in 432 108 pro-offered testimony. true as a No. 2 was not certified Exhibit of error appellant’s second packet, nor was appellant’s pen copy of asserts that thе trial court erred in the pen packets records a of the custodian admitting punishment phase by of the trial a true was testify that the exhibit called into a xe- evidence State’s Exhibit No. Expert pen packet. original of the copy appellant’s pen packet, roxed of copy testify witness, that Borgstedt, could prove portion of the in- the enhancement card and three-by-five fingerprints on the dictment. were identi- pen copy packet on the not to the en- true plead the au- cal, testify but he could allegation. hancement State This exhib- pen packet. thentication Borgstedt, Deputy Leslie L. as- Sheriff its con- being proof it was offered as signed to the Identification Division of the tents, is, prove that that Harris who County Department, Sheriff’s aggrava- previously convicted had expert was fingerprint shown to an robbery, merely to ted and not The court admitted into evi- identification. pen packet. of a existence dence, objection, three-by-five without thumbprint card which contained prosecutor supra, In Vessels v. which been taken earlier that copy of what evidence a introduced into to offer a xe- day. аttempted The State sheet,” appellant’s “rap evidently packet. appellant’s pen roxed copy which contained enumeration to its admission appellant objected held The Court pellant’s prior convictions. grounds that, copy original as a certified not been the instrument had pen packet, properly not been au- manner so as any or authenticated thenticated, predicate provi- its under the authorize introduction ob- had been made for its admission. The 3731a, Tex.Rev.Civ.Stat. sions Article jection and the document was overruled admission of The Court held that Ann. went on to admitted. The witness error. rap sheet was reversible testify compared finger- 3731a, Art. Section Tex.Rev.Civ.Stat.Ann. prints appellant with the taken from the (Vernon 1980-1981) of the Rules Supp. fingerprints packet copy on the fingerprints part: he had found the reads in Evidence writings Section 4. or In Plair v. Such electronic Tex.Crim. by records be evidenced an official (1925), Ap- the Court of S.W. Criminal publication copy thereof or or elec- peals right held that counsel has a to ask duplication tronic attested the officer venire any questions panel having legal сustody or of the record intelligently using per- him in may aid deputy. of a Except case recognized emptory challenges. copy writing official elec- or official judge’s that it within the trial discretion recording tronic a public office of scope set reasonable limitations thereof, this State a subdivision held, asked. The court accompanied attestation shall be awith quеs- that counsel has a attesting certificate that officer has prospective jurors individually tion the as to legal custody writing. of such qualifications. their “There is a certain appellant’s pen The xeroxed degree of about timidity and diffidence *4 packet was not authenticated under jurors some be to would calculated procedure 3731a, Article and a to personal- cause them remain silent unless predicate was not laid for the admission ly upon any question.” to answer this order the enhancement indictment. distinguishable from present case is punishment When enhancement are and Plair, supra, however, because the court did court jury, pursuant without a questions not restrict the defense counsel’s 37.07, Tex.Code Crim.Pro.Ann. article and panel, individual members of the but committed, error the case shall restricted the total amount of time that manded trial court for hear- question panel. counsel could ing and assessment of punishment without In the case of De La Rosa v. a jury. Bullard See (Tex.Cr.App.1967), S.W.2d 668 the trial judge instructed the each attorneys that The appellant’s ground second side would be thirty limited minutes sustained. which to conduct voir dire examination The appellant’s third of error jurors. thirty-two appellant’s attorney urges that the trial placing court erred by objected, in writing, that such a limitation an unreasonable time limitation deprive asking prospec- would him of each appellant’s voir pro- dire examination of name, address, status, juror tive marital spective jurors, and thereby, deprived him place employment, religious educа- and a fair impartial jury, right counsel, heard right background, and of the to tional cetera. attor- et effective assistance of counsel in violation request for ney’s an additional fifteen min- of the federal and state constitutions. voir utes for dire examination was denied. perfect exceptions His his bill of
The court stated each side would be forty-five limited to voir minutes for its what the jurymens’ shоw answers would dire prospective examination of the jurors. been, harmed, have how he had been defense counsel to this limita- was denied. The record revealed that he tion upon grounds least his peremptory used at four of chal- Sixth Amendment right to effective counsel jurors lenges prospective whom he would attorney be violated. defense question individually. not allowed submitted of law support- memorandum held ing time. The additional adequate had been denied an court admitted into evidence court’s Exhibit panel: voir of the jury dire examination juror No. information forms. recognize only We that it not attorney’s overruled defense then duty but the of the trial court to confine objection to the forty-five minute limita- jurors prospective tion, the examination of voir proceed- dire examination ed. not within reasonable limits. If this was overruling
so,
sup-
terminate.
motion
some trials
never
Grizzell
164 Tex.Cr.R.
press
the identification
(1956).
not
duty
S.W.2d 816
This
does
State’s witness.
it, however,
authority
with
carry
9, 1980,the
conducted
On
appellant's
privilege
refuse
counsel the
concerning
identifi-
complainant’s
examining
juror individually within
each
presence
cation
reasonable limits.
robbery
she
rеlated
case,
attorneys
were
present
testified that it
to the court.
incident
She
with
cards
juror
furnished
information
she was robbed and that
daylight
when
name, address, age,
oc-
revealed the
covering
face of the rob-
nothing
cupation,
spouse, spouse’s em-
employer,
she
During
hearing,
positively
ber.
ployer,
religion,
juror.
of each
In addi-
appellant as the man who
identified the
tion,
juror
the card
of each
de-
her.
that she had
robbed
She testified
length
time
in Harris
resided
being a
police
scribed the
robber
juror
whether
had been accused
County,
five-six, light complexion,
man
black
“about
ever of a crime and whether he had served
Afro,
pounds.” After
medium
about 150
ever
panel.
before on civil or criminal
police presented
investigation,
some
attorney
The defense
in De La Rosa
at,
some
look
complainant
pictures
concerning
have
access
this information
picked the
juror.
present
each
prosecutor
picture
pictures.
later
pile
out of a
case asked the
a number of
police lineup.
in a
*5
appellant
identified the
concerning the elements
law involved
feel
testified that she did not
Cоmplainant
case,
appropri-
the
their
the
ability
apply
police in her
was influenced
the
that she
proof
ability
ate burden of
their
nor
appellant’s photograph
selection
the
The in-
decide the
of witnesses.
appellant at the
identification of the
her
asked
about their
jurors
dividual
were
also
lineup.
prior experiences in other criminal matters.
attоrney
panel
The
the
asked
the
After
court denied
prejudices
number of
about their
the witness’s identifica-
suppress
motion
experiences
which could influence their
appellant,
jury
was called
tion of
There
no
for
decision in
case.
need
courtroom,
be-
back into the
trial
appellant’s attorney
duplicate ques-
day,
the court
gan. That same
previously by
tions
beеn asked
following day,
declared a mistrial. On the
State,
prosecutor.
v.
513 S.W.2d
See Smith
10,
trial,
from which this
(Tex.Cr.App.1974).
827
The record
arises,
jury.
began before new
veals
their time for
attorneys
that the
used
suppress
motion
the identification
efficiently.
voir dire examination
All of
testimony
essential elements
the indictment
on that motion
ruling
court’s
charge
and of the court’s
seem have been
pro-
into
new
incorporated
trial
were
panel. The
touched
with the
appellant as
ceedings. She identified the
jurors indi-
appellant’s attorney asked the
in the courtroom.
her assailant
topics. At
vidual
a number of
questions on
com-
suggest
his
that the
nothing
end of
time made
There
panel; and
additional time
examine the
identifications of the
plaining witness’s
after
he stated his
sugges-
the selection
unduly
pellant as her robber were
approval of its
There
noth-
constitution.
picked
complainant immediately
tive. The
ing in
court to
appellate
the record for
appellant
photographs.
State,
548 S.W.2d
review. See Collins
in her
try
did not
to influence her
officer
Appellant’s
(Tex.Cr.App.1976).
371
no one tried
selection. She testified that
ground
third
of error is overruled.
was able
lineup.
influence her at the
“The
identify
appellant
in court.
ground
appellant’s fourth
facts, the
trial court erred
trial court was the trier of
assertion that
eye-witness testimony.
weight
ruled
credibility of
witnesses and
charges
to be
been time-
given
proposed
to their
The court
these
testimony.
ly
timely
at trial.
accept
reject
was free to
or
submitted and
overruled
State,
of any witness.” Limuel v.
fully
not avail himself
S.W.2d
provisions
Crim.Pro.
Tex.Code
(Vernon 1979); and
enough
support
There is
the Ann. art.
there-
evidence to
44.11
complain
fore he
that the record is
finding that
witness’s observation
cannot
during
incomplete.
part:
the offense
suffi
Article 44.11 reads
as an independent
cient to serve
basis for
any portion
cases where
record or
her
in-eourt identification of the
may
thereof
destroyed
is lost
(Tex.Cr.
See
Clay
substituted in the trial court and when so
App.1975);
O’Brien v.
final error that the absence of requested charges were not included in the the appellant’s requested charges from the appellate record. The court held: appellate requires record a reversal because the appellant has been does any denied the record not reflect at- appeal. tempt part effective on the make any alleged substitution lost in- During preparation of the court’s 44.11, provided strument as for in Article charge, counsel submitted trial V.A.C.C.P. make “[T]he proposed own chargеs on the destroyed substitutions for lost or docu- evidence, issues of alibi and and on ments, 40.09, and under his find- Sec. the definition of reasonable doubt. The ings, supported by if court denied counsel’s to substitute hearing, are final.” charges counsel’s for its own. Nowhere attempt does counsel requested of the set forth his requested charge what con- *6 clerk of the court that his proposed charge tаined nor does state how he appellate be included in the was harmed virtue of the fail- court’s record. Upon receiving notice grant ure perceive same. We no error. pellate was complete, record analogous Coble is present situa- filed a for Hearing Motion to Determine tion. The reveals court was record that the Status Appellate The appel- Record. willing comply documents, lant alleged that certain quests complete appellate record. record, included Nothing prevented para- had been personnel lost and were original had con- phrasing charges what his not in the At hearing, record. the court hearing. tained at the The made found that four items which the attempt so. He not be to do should had requested to be appel- included in the allowed to his failure as an use to act late record been lost. found judgment excuse to overturn the items, one of placed these and it trial court. record. The copies submitted fifth error is items, two of the lost and these were readi- overruled. ly admitted into the objec- without record tion. item, The fourth proposed judgment is re- trial court charges, could not found. versed and remanded a new counsel, however, attempt did not punishment enhancement charges, reconstruct these to state except jury. court without a the hearing charges related to alibi, doubt, DYESS, testimony, JJ., sitting. reasonable SMITH and also Rehearing on Motion
Opinion SHIELDS, HALSEY STUART BACHE BASS, Justice. INCORPORATED, Appellant, rehearing addresses Appellee’s motion for point cоncerning copy “the xeroxed HOUSTON, Appellee. OF UNIVERSITY (Sx-2) pen packet No. 18045. of Arti- provisions authenticated under 4, (Section Tex.Rev.Civ.Stat.Ann.), cle 3731 Texas, predicate was not laid for the proper First District. enhance- admission of this May 1982. of the indictment.” 1982. Rehearing Denied not have The record on Sx-2 Appeals. forwarded the Court
testimony of officer stated Sx-2 and was not an photocopy,
was xeroxed or of the Motion for
original. filing Since the (Sx-
Rehearing appellee the exhibit by the
2) Ap- has to the Court been delivered
peals. packet (Sx-2) original has the
certification from officer sentence, copies judgment,
xeroxed attached
fingerprints photographs, thereof, part are now
thereto and made Appeals. the Court of
properly before has and was predicate pursuant laid in the trial court
properly (Section
Article 3731a Tex.Rev.Civ.Stat.
Ann.). rehearing motion for appellee’s motion is de-
granted judgment of
nied. This court’s former vacated,
April 1982 is set aside and
annulled.
The judgment of the trial court is af-
firmed.
/s/ Sam Bass
Associate Justice SMITH, JJ., participat-
DYESS
ing.