*1 guilty possession of a controlled sub-
stance. beyond reasonable you
Unless so find
doubt, you or if have a reasonable doubt
thereof, defendant not you will find the
guilty. you beyond
If from the evidence find the defendant
reasonable doubt possession of a con-
guilty aggravated grams, of more than 400
trolled substance possession a controlled sub-
aggravated grams less than
stance of 28 or more but controlled grams, possession
substance, doubt you have a reasonable but guilty, you offense he is then
as to which in defendant’s fa-
must resolve that doubt of- guilty find him of the lesser
vor and
fense. you
If a reasonable doubt have guilty defendant is offense
whether charge, you then should
defined in this say by your ver-
acquit the defendant and guilty.
dict not REED,
Jerry Appellant, Texas, Appellee.
The STATE 222-90.
No. Texas, Appeals of
Court of Criminal
En Banc.
May Dallas, (on Hagler appeal only),
John H. appellant. Vance, A. Atty., Dist. Kathleen John Doolin, Asst. Dist. At- and Colleen Walsh Dallas, Huttash, Atty., tys., Robert State’s Austin, for the State. *2 penitentiary packet of a to admission
tion
copy
contained a
which
from the TDCJID
appel
sentence of
judgment
and
of the
MOTION
OPINION ON STATE’S
burglary.
for
previous
conviction
lant’s
REHEARING
FOR
of the
argued
the
that
Appellant
MALONEY, Judge.
were inadmissible
and sentence
judgment
for Re-
granted the State’s Motion
We
by
because,
they were certified
although
opinion
origi-
hearing to
our
re-examine
TDCJID,
at
the
custodian of
the
prior opinion is with-
submission.1 Our
nal
separate
certification
not reflect
they did
drawn.
convict
of the
district clerk
by the
this
County. Based on
in
ing court
Dallas
by
Appellant
charged
indictment
was
State, Dingler
opinion
in
substance,
Court’s
possession of a controlled
of
(Tex.Cr.App.1989),
the court
S.W.2d
heroin,
SAFETY CODE
TEX.HEALTH &
packet
not
the
should
appeals held that
1990),
481.115(aHb)
(Vernon
en-
ANN. §
copy of the
because the
been admitted
have
burglary,2
by
prior
conviction
hanced
for
therein
and
contained
judgment
sentence
Code,
12.42(c).
ap-
Penal
V.T.C.A.
district
from the
not reflect certification
did
as-
pled guilty and the trial court
pellant
convicting court.
of the
clerk
(20)
punishment
twenty
years
at
sessed
Texas
of
Department
confinement
the
Dingier held that
copy
the
of
Justice,
Institutional
Division
Criminal
pen packet,
and sentence
in the
ment
(TDCJID).3
Appeals
The Fifth Court of
as self-authenticated
order to be admissible
pun-
appellant’s conviction as to
reversed
documents),
reflect
that
must
Reed v.
opinion,
published
in a
ishment
by
TDCJID was certified
copy
by
received
State,
412 (Tex.App.
convicting court.
of the
the district clerk
1990).
Dingier,
Dingier
was
supra,
appeal
predicated
upon
direct
TEX.REV.CIV.STAT.
Appellant claimed on
3731a4,
not
repealed,
now
overruling
objec
court
his
ANN. art.
the trial
erred
200(c)(1)
(4).
cording
or a
this State
TEX.R.APP.P.
office of
thereof,
be
the attestation shall
subdivision
charging appellant
pos-
2. The indictment
accompanied
attest-
with a
certificate
of heroin contained two enhancement
session
ing
custody
writ-
such
has
of
officer
allega-
paragraphs.
court
The trial
found
kept
ing. If the
in which the record is
office
paragraph
in the
to be
tions
first enhancement
...,
within the United States
the certificate
true. The
court found
second en-
trial
judge
may
by
of record
be made
court
paragraph,
alleged
appel-
hancement
political
in which the
of the ...
subdivision
burglary
been
of
lant had
convicted
kept,
by
his
the seal of
authenticated
be true.
office ...
Sec. 6. Other Proof
Justice,
Department
Texas
of Criminal
3. The
prevent
proof
of official
This rule does not
(TDCJID)
formerly
Institutional Division
by
entry
entry
lack of
therein
records or of
or
Department
as the
Corrections
known
Texas
of
by
applicable
an
stat-
method authorized
(TDC).
common
or
rules of evidence at
ute
3731a,
added).
provided
perti-
(Emphasis
repealed,
law.
4. Article
now
3731a, repealed,
part:
art.
nent
TEX.REV.CIV.STAT.ANN.
September
of the
order
effective
Any
made
Section 1.
written instrument
...
Appeals adopting
Texas
any govern-
Court
Criminal
or
an officer of this State
thereof,
regarding criminal
deputy,
of Criminal Evidence
mental subdivision
his
art. 1811f
performance
of his
TEX.REV.CIV.STAT.ANN.
of the functions
cases.
...
be,
9(a)(3).
employment
as
shall
so
office
far
relevant,
language
Dingier
the courts
this State
relied on
in Todd
admitted in
therein,
(Tex.Cr.App.1980),
support
stated
...
the matter
S.W.2d 286
separate
proposition
certification
for
and sentence
the district clerk of
Copy
4. Authentication
Section
authentication,
required
did not
but Todd
writings
...
Such
evidenced
Todd,
specifically
this.
In
hold
copy
duplication
or electronic
attested
custody
sentence had in fact been certified
having legal
officer
by
point
clerk
Court detailed this
deputy. Except
district
and this
his
in the case
sufficiency
upon
passing
the evidence
writing
re-
or official electronic
an official
arises,
In the usual case where this issue
on the
Texas Rules of Criminal
current
Dingier
separate
Evidence 901 and 902. The rule of
there are two
sets of records
forward,
however,
been carried
has
sentence —the district
construing Rules 901 and 902.5
cases
retains
clerk of
originals
judgment and sentence on
Dingier
have reconsidered the
We
a certified
file in that court and sends
opinion
longer
find that it is no
valid
turn,
which, in
retains the certi-
to TDCJID
*3
902,
light
and
is inconsistent
of Rules 901
part
perma-
copies
fied
of the inmate’s
law,6 and is also
prior
with
Texas case
See
penitentiary.
file
nent
inconsistent with the federal cases decided
(Copies
42.09
8
of the
V.A.C.C.P. art.
§
evidence,7
under the federal rules of
delivered to the
judgment and sentence are
are the source of Rules 901 and 902 of the
defendant
Director at the time a convicted
Texas Rules of Criminal Evidence. Din
TDCJID).8 The dis-
to the
3731a,
is transferred
gier
goes
way
of former Art.
legal
is the
custodian of the
4, V.A.C.S.,
trict clerk
repealed, and is over
now
convicting
originals
file in the
court and
on
ruled.
allegation.
document or doc-
See
tion for admission of the
to sustain the enhancement
Todd,
The Court was
uments.
in order to
admissible
au
(2)
provides
Paragraph
of the rule
Dingler,
documents.
thenticated
para-
in accordance
*4
when,
problem
S.W.2d at 306. The
arises
seal,
(4),
graph
not under
will be
supra, but
case,
copies
as in
the
of the
this
self-authenticating
if a
officer hav-
by
and
do not reflect certification
sentence
ing
signer
the
a seal certifies that “the
has
clerk,
convicting
only by
the
the
but
signature
that the
is
capacity
official
and
The question
record clerk at TDCJID.10
902(2).
genuine.” Tex.R.Crim.Evid.
then is
Rule 901 or
the
whether
902 of
copies
The
and sentence
of the
Texas
requires
Rules of Criminal Evidence
packet
case
in the instant
were
that the
who certifies the records
custodian
by
clerk of the
the record
TDCJID
records,
original
must
the
be custodian of
902(4).
The clerk attest-
accordance with
by
or if
the
certification
custodian of a set
ed as follows:
copies
is likewise sufficient.11
That I am
Record Clerk of the Texas
the
expressly pro-
nor 902
Corrections,
Neither Rule 901
Department
penal
insti-
certifying
Texas,
vides that
the
of a
tution of
situated in
the State
may only be the
custodian of the
County
the
aforesaid.
and State
That
original
record. Certification
the
by
my legal
such officer are
Custody as
original
persons
custodian as a means of
authentica-
files and records
specifically
tion is
addressed in Rule
heretofore
to said institution:
committed
provides
(x)
(x) fingerprints
types
photograph
which
that certain
of doc-
employed by
question
9. This
“best
is but one method
the State
cation. The
of the
evidence” or
proving up
prior
as a means of
conviction.
requirement
original,
covered Article X
analyzed
For a delineation of other methods
Evidence,
of the Texas
of Criminal
Rules
caselaw,
dissenting opinion
the
Judge
239,
see the
filed
not raised in
instant case. “Presentation of
State,
Handspur v.
Onion in
potentially presents
document as evidence
filed).
(Tex.App.
pet.
authentication,
at least three issues:
dence,
best evi-
901(b)(7)
hearsay
and
...
treats
problem
Apparently,
respect
with
only
best evidence
[t]he
[authentication]
convicting
omission of the
cate is
court clerk’s certifi-
problem
hearsay
and the
treated in Rule
that,
sometimes when the TDCJID custo-
803(8)-(10), (14),
problem is
treated in
copies
dian of records
ment for
the sentence and
omitted).
(22)-(23)." (footnotes
S.
pen packet purposes, only
the face of
Goode, Wellborn,
Sharlot, Texas
O.
& M.
Prac-
photocopied,
though
the documents are
even
typically appears
clerk
tice—Guide
the Texas Rules Evidence: Civil
certification
(1988).
on the
the documents.
is a
back of
The result
and Criminal
901.9
showing
lack
of the
court clerk's
However,
provides
that a
See Henderson v.
certification.
place
be admissible in
of the
record will
(Tex.App.
S.W.2d
[14th Dist.]
—Houston
copy is certified in accord-
where the
filed).
pet.
All that remains is
certifi-
ance with
See Tex.R.Crim.Evid. 1005.
Rule 902.
clerk,
cation
TDCJID records
and accom-
copies
holding today
Since our
is that the
of the
panying attestations thereto.
sentence certified
the TDCJID
902(4), ipso
Although
possible
comply
but
authentication is
one
record clerk
with Rule
fac-
to,
evidentiary
hurdle for admission
a document
into
are receivable
evidence in
evidence,
only objection
lodged
into
lieu of the
under Rule 1005.
improper
appellant at trial was that of
authenti-
containing copies
(x) commitments, including judge-
pen packet
todian of the
conviction,
sentence,
prior
defendant’s
Jerry Keith Reed of the
ment and
C74-5767-PH,
the conviction
#243306
#
TDC
CAUSE
clerk,
record
was therefore self-
C73-1115-NH,
TDCJID
person
C74-3908-PH a
authenticating
subsequent prosecution.
in a
penal insti-
heretofore committed to said
Dancy,
Likewise,
United States
impris-
and who
term of
tution
served a
(5th Cir.1988), the court held that
F.2d 77
therein;
compared
onment
I have
pen pack-
the documents
the defendant’s
respective
the attached
their
Department
prepared by the California
et
originals
my
office and
now
file in
and certified
of Corrections
CDC
true,
contains,
full,
thereof
each
clerk, including copies of the defen-
its
transcript
and correct
finger-
prior
judgment and
dant’s
criminal
original.12
said
card,
self-authenticating in
print
were
signed by
This statement was dated and
per-
subsequent prosecution.13 We are
certifi-
the record clerk.
record clerk’s
of the federal
suaded
rationale
presiding
cation is then attested
point
on this
correct and we there-
courts
county
judge of the
court of Walker Coun-
hold that the TDCJID record clerk’s
fore
In
located.
ty
TDCJID is
pen packet copies
certification
902(2),
Tex.R.Crim.
accordance
proper
judgment and sentence constitutes
Evid.,
judge
certified under seal that
authentication
accordance with Rule
clerk of
is the
the record
Evi-
of the Texas Rules of Criminal
signa-
custodian of the records and that the
dence.
genuine. The
judge’s
ture is
certificate
*5
properly
While a document
be
au-
clerk,
county
attested
the
who
further
thenticated under either of Rules
judge
the
authorized
certified that
902, and need not
authenticated under
be
law to execute the certificate.
both, we nevertheless address authentica-
construing
In
Rules of
the Texas
901(a) simply
under Rule 901. Rule
tion
Evidence,
patterned
Criminal
which were
general
require-
sets out the
rule that the
Evidence, we are
after the Federal Rules of
ment of authentication is satisfied
ex-
interpreting
federal
the
guided
cases
question
trinsic evidence that the matter
rules, although
thereby.
federal
not bound
claims,
proponent
without limit-
is what its
Miller, Texas Rules of Evidence:
See C.
ing
type
the
evidence which
extrinsic
Privileges,
THE
Article V.
16 VOICE FOR
901(b)
provides
then
may be used. Rule
Clinton,
(October 1986);
DEFENSE 40
S.H.
type
several illustrations of the
of extrinsic
Texas Rules of Evidence:
and Gen
Genesis
require-
satisfy
evidence which would
the
Provisions,
THE DE
FOR
eral
VOICE
of the illus-
ment
authentication. One
(October 1986). Federal courts
FENSE 26
trations, example (7), specifically addresses
proper
that a
the
have held
certification
provides
reports,”
“Public records and
correctional
custodian of
at a state
that authentication is established
“[evi-
is sufficient authentication un
institution
writing
a
law to
dence that
authorized
902(4)
prior
a
convic
der
office, or
public
recorded or filed in a
be
files.
tion contained
that institution’s
statement,
public
purported
report,
Darveaux,
form,
States
compilation,
830 F.2d or data
from
United
In
Cir.1987),
(8th
public
office
of this nature
the court held that
where items
901(b)(7).
kept.”
of the
cus-
record clerk
TDCJID was
are
Tex.R.Crim.Evid.
rejected
Only
Dancy
for en-
court in
the defendant's
Cause # C74-5767-PH was used
13. The
pen
argument
packet
that the
from the Califor-
purposes.
prior convic-
hancement
One of the
Department of
nia
Corrections was
recorded
alleged by the
found to be not
tions
State was
"public
or filed in a
office” because
objected
defense
based on the fact
true after the
require
must
does not
that "official records”
be
court’s
there was no written waiver
public
or filed in
office to be self-
recorded
although
jacket
recited
on its face
Thus,
authenticating. Dancy,
at 79.
861 F.2d
a waiver.
the court did not
the issue of whether
address
“public
CDC is a
office.”
respect, custody of the
Thus,
authenticating a
in some
one
fraudulent
means of
questionable, if not un-
showing
prisoner
would
public record under
relatively low
probabilities
The
are
public
lawful.
is from a
office authorized
be false
the TDCJID records would
M.
keep such a record. 5 J. Weinstein &
fraudulent,
though
originate
they
even
do
901(b)(7),
Berger, Weinstein’s Evidence §
source,
convicting court.
case,
from another
(1990). In
901-98
instant
it
Berger, Wein-
5 Weinstein &
generally
clear that TDCJID is authorized to
seems
Evidence—United States
records,
stein’s
given
fact
keep the
(1983)
901(b)(7)[01]at 901-97 to 901-98
these
relies on
records as its basis
TDCJID
ad-
regularity
(presumption
attaches
holding him in
admitting prisoner
governmental
affairs be-
ministration
custody.
only remaining
The
fact which
con-
cause falsification
documents
901(b)(7)
established
is that
must be
under
and, usually,
duty
a breach
stitutes
so,
“public
If
then
TDCJID is
office.”
law).
of the
violation
are
un
properly
the records
authenticated
901(b)(7) by
der
of the TDCJID
virtue
authenticity of
documents is fur-
The
record clerk’s certification that
testimony of the
ther corroborated
judgment and
of the
sentence contained
expert witness who stated that
State’s
“full,
pen packet are
and correct
true
card in
fingerprints
fingerprint
from
cop[ies].”
pen packet
fingerprints
taken
morning
appellant
from the
However, we
decide wheth
need not
hearing
by the
punishment
were made
office,
(7)
example
er
individual,
oppo-
appellant.
same
only means by
is not the
which authentica
always
nent of the evidence is
free to chal-
accomplished
tion can be
Rule 901.
under
course,
lenge authenticity, of
even under
See,
Lopez,
e.g., United States v. Jimenez
advisory
See Fed.R.Evid.
(5th Cir.) (conclusive proof
certified may not may certified or be a Dingler of this Court in decision 1001(4); duplicate as defined Rule that (Tex.Cr.App.1989) is If is immaterial. it is a certified or com- ap opinion of court of correct. The it is under pared copy, admissible cause, State, supra, is peals in Reed this duplicate; it if whether not correct. For reasons stated herein compared, it it is not is not opinion majority in cause is this duplicate.” even if admissible it incorrect. Therefore, if even the record clerk received Accordingly, I would affirm duplicate “copy” what he believed be a appeals, ment of the court of and because sentence, of judgment and since it was not majority potential does not and the the clerk of the it thus is far too unreliable records fosters court and the record clerk does claim possession risky, he I compared duplicate in his dissent.8 Indeed, agencies. Department Criminal To hold State’s exhibit 3 "evidence support finding sufficient to question that the matter in charged establishing Justice a Criminal claims,” i.e., proponent is what its History System. Chapter Record judgment of conviction in cause number C74- V.A.C.C.P. Court of 5767-PH County, Criminal District Dallas today's Under decision a clerk” in “records provide opportunities is to for hands of certify every other- such office an persons prece- inclined to mischief and to create "copy" “original" wise unauthenticated of an followings virtually future are dent for lim- office," my “on of conviction file knowledge purported itless. It is common copies support and it admissible will be judgments criminal cases find their allegations paragraph. an enhancement way cies, agen- files and into records of other state presumption regularity Justice, Thus the relied on Department e.g., par- of Criminal weak, division; offices; majority, opinion, paroles probation dons and becomes offices, sundry hope. sheriffs’ law enforcement slender reed of
APPENDIX Notes 901(b)(7)(proof custody); Black’s Slip Opinion, at 9. With of phase[.]” ishment Rule Ed.1968) (Rev. Fourth deference, Dictionary dissent. respectfully I Law aspect special “a Rule 901 deals with prosecution there is but one In criminal relevancy proffered a relevancy”—when “judgment.”1 identity, source “depends upon its 11, 1974, is "entered of In both instances it § id. it was "the declaration October 1. On actually record,” judgment rendered is 42.- record” when former article entered of the court 01, 1, V.A.C.C.P.; 3, 1988, of the court.” Jones "entered in the minutes it was "the on June § J., State, (Clinton, dissenting to signed by S.W.2d 33 of the court written declaration 35); 42.01, rehearing record," West-brook at denial of motion for judge Article and entered of trial presented of district no extrinsic evidence The sole official custodian State alleged former convic- entered is the whatsoever judgments of record solely on burglary; for it relied Code, tion clerk V.T.C.A. of court. Government paper packet, included State’s (b). 51.303(a) and § 3, appended hereto, being as a certi- exhibit prove of any To the content copy. fied judgment, original a including Thus, the authentication or identification required except provided as otherwise required precedent a to ad- condition rules of evidence law. Tex.R.Cr. missibility proper judgment of convic- Evid, pro- Rules 1002 and the latter allegations support tion to enhance- viding copy. or “compared” for a certified paragraph ment was not satisfied ac- Thus, extrinsic evidence under Rule 901(b)(7). majority The cordance with 901(b)(7)showing rendered by retreating generality admits much to district court is made from the minutebook 901(a), of Rule and then turns into “extrin- through testimony in which entered it was evidence,” sic for which there no record court, of the clerk of custodian “the fact are support, that the records true kept. it is produc- office where “The upon and correct those judgment by tion of the suffi- clerk is admitting detaining relies in prima proof authenticity.” cient facie of its prisoners[.]” Opinion, at 587. That al- Co., Hughes Short v. & S.W. Blair “fact,” however, leged be “extrinsic cannot 1921), (Tex.Civ.App. at 431 no evidence” that such records in fact true are Evidence, history; Ray, writ Law of originals and correct on file back (minute 1A Texas Practice 470 the office the clerk of the book to establish admissible court.3 There is no evidence” “extrinsic court); Evidence, 7 Wigmore, supra.2 they are. In the cause instant the record conclu- 902(4), 901(a),merely pro- like Rule sively alternative, demonstrates the State did not satisfying vides an means for call the district clerk as a to au- witness precedent admissibility,” “a condition identify thenticate or from the minute book coupled contemplates with Rule 1005 prior judgment of conviction in cause copy original that a of an record or official alleged paragraph, in the enhancement of an document authorized law Indeed, namely Cause No. actually C74-5767-PH. be recorded or filed and record- v (Tex.Cr.App.1988) proved only S.W.2d court can recorded instru- . (Clinton, J., 160). concurring Entering thereof). duly ment or certified Former 3731a, enduring V.A.C.S., provided minutes affords "an article likewise judicial furnishing id., evidence of the act judgment, thus admission of recorded external and having incontestable evidence of [deci attested to the officer rendered], designed perpet thereof, i.e., court, custody sion to stand as a the clerk of ual memorial of action.” [the court's] Westbrook 4.§ State, supra, quoting prior opinions Court. majority says "express- not Rule 901 does ly" provide certifying that "the act, Similarly, judicial a "sentence” is also may only be the custodian of the record; an trial order of the court entered of Opinion, But record." at 585. instrument, separate part once a it is now a provision 901 makes no about a whatsoever 42.02, judgment. Article V.A.C.C.P. course, custodian," "certifying so of illustrations 901(b)(9) remotely suggest do that a writ- permitting copies merely 2. A statute