Henderson v. StateHenderson v. State
- Reporters:
- ,
- Before:
- Maloney
Lead Opinion
OPINION ON STATE’S AND APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW
MALONEY, Judge.Aрpellant was charged by indictment with aggravated robbery, V.T.C.A. Penal Code, § 29.03, enhancеd by a prior conviction for aggravated robbery, V.T.C.A. Penal Code, § 12.42(c). A jury found the aрpellant guilty and the trial court assessed punishment at forty (40) years confinement in the Texas Department of Criminal Justice, Institutional Division (TDCJID).1 The Fourteenth Court of Appeals rеversed the appellant’s conviction as to punishment in a published opinion, Henderson v. State, 788 S.W.2d 621 (Tex. App. — Houston [14th Dist.] 1990).
The State’s petition for discretionary review was filed to determine whether the cоurt of appeals misconstrued Rules 901 and 902, TEX.R.CRIM.EVID., in its determination that the trial court admitted аn improperly authenticated pen packet during the punishment phase of аppellant’s trial.
The appellant claimed on direct appeal thаt the trial court erred in overruling defense counsel’s objection to admission of thе pen packet from TDCJID because the judgment and sentence did not reflect proper certification by the district clerk of the original convicting court. The pen packet admitted into evidence by the trial court contained a copy of the judgment and sentence of appellant’s previous conviction fоr aggravated robbery on file with the TDCJID. The records were duly attested by the custodian of records at TDCJID. Based on this Court’s opinion in Dingier v. State, 768 S.W.2d 305 (Tex.Cr.App.1989), the court of appeals held that the pen packet should not have been admitted because the copy of the judgment and sentence contained therein did not reflect the cеrtification from the district clerk of the convicting court.
We summarily grant the State’s pеtition for discretionary review and reverse the *158judgment of the court of appеals based on our recent opinion in Reed v. State, 811 S.W.2d 582 (Tex.Cr.App.1991), overruling Dingier, supra.2 The State’s ground for review is sustained and the judgment of the court of appeals is reversed on this issue.
Appellant has also filed a petition for discretionary review alleging Batson3 error in five separatе grounds, challenging the state’s exclusion by peremptory strike of three black venirеpersons. The court of appeals found no merit in appellant’s Batson claims. Henderson, supra, at 788 S.W.2d 624. The cоurt reasoned that, as to juror number 11, no prima facie showing of discrimination was made out by appellant and, further, that “an appellant can not do a comparison analysis or raise a claim of pretext for the first time on appeal,” citing Tompkins v. State, 774 S.W.2d 195 (Tex.Cr.App.1987). Henderson, supra, at 788 S.W.2d 625.
In grounds one and two, appellant contends that the court of appеals misconstrued Tompkins v. State, 774 S.W.2d 195, 202-203 at n. 6A (Tex.Cr.App.1987), as precluding a defendant who is claiming Bat-son error from making a “comparison analysis” on appeal unless the analysis was first made at the trial level. See Henderson, supra, at 788 S.W.2d 625. In our recent decision in Young v. State, 826 S.W.2d 141 (Tex.Cr.App.1991), we held that footnote 6A in Tompkins is not to be read as holding that a “comparison analysis” must be made аt the trial level before it ean be argued on appeal.
In ground three, appellant contends the court of appeals erred in its disposition of aрpellant’s Batson claim respecting juror number 11. The court’s of appeals summary dispоsition of this point, upholding the trial court’s determination that appellant failed tо make a prima facie showing of discrimination, is inconsistent with this Court’s opinion in Dewberry v. State, 776 S.W.2d 589 (Tex.Cr.Apр.1989), where we delineated acceptable methods by which a defendant may establish a prima facie Bat-son claim.
Accordingly, we summarily grant grounds one, two and three of the appellant’s petition for discretionary review,4 reverse the judgment of the court of appeals on these three issues, and remand this cause to that court fоr reconsideration of these three grounds in a manner consistent with this opinion. As statеd, with respect to the State’s petition for discretionary review, we reverse the judgment of the court of appeals as to its finding that the pen packet was inadmissible as improperly authenticated.
McCORMICK, P.J. and CAMPBELL, J. dissent to the disposition of appellant’s grounds for review 1 and 2 based on CAMPBELL, J.’s dissent in Young v. State, 826 S.W.2d 141. WHITE, J. dissents to the disposition of appellant’s grounds for review 1 and 2. CLINTON, J. concurs in the result.Notes
. The Texas Department of Criminal Justice, Institutional Division (TDCJID) was formerly known as the Texas Department of Corrections (TDC).
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. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
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Dissenting Opinion
dissenting.
For the reasons expressed today in Young v. State, 826 S.W.2d 141 (Tex.Cr.App.1992) (dissent on State’s motion for rehearing) (Benavides, J., dissenting), I dissent to the Court’s denial of the State’s motion for rehearing.
McCORMICK, P.J., and CAMPBELL and WHITE, JJ., join.