Beck v. State

• Decision Date: 05 November 1986
• Docket Number: No. 1091-85,1091-85
• Citation: 719 S.W.2d 205
• Parties: Allan BECK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 205

719 S.W.2d 205

Allan BECK, Appellant, v. The STATE of Texas, Appellee.

No. 1091-85.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 5, 1986.

Scott E. Segall, Dick Stengel, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and David Clay Cowan and Abe P. Hernandez, Jr., Robert Dinsmoor, Asst. Dist. Attys., El Paso, Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This is an appeal from a conviction for the second-degree felony offense of escape under V.T.C.A., Penal Code, § 38.07(d). The punishment was assessed by the jury at 20 years' imprisonment. The conviction was reversed by the Court of Appeals in an unpublished opinion holding, inter alia, that evidence of a prior conviction was offered at the penalty stage upon the unsworn testimony of the fingerprint expert, Sergio Lopez; that a witness' oath is a fundamental and essential requirement for testimony of such witness to have any binding effect; and that without sworn testimony the State's connective link between the appellant and the pen packet was not viable. Ground of error number two was sustained. Beck v. State (Tex.App.--El Paso, No. 08-82-00084-CR, August 21, 1985).

We granted the State's petition for discretionary review to determine the correctness of such decision.

Here the procedural history of the case should be briefly noted. On original appeal the conviction was reversed. Beck v. State, 647 S.W.2d 55 (Tex.App.--El Paso 1983). The Court of Appeals held that the indictment was defective. However, in passing, the Court of Appeals overruled ground of error number two, holding that the appellant waived any error by failing to timely object to the lack of an oath on the part of the witness Lopez.

Following the granting of the State's original petition for discretionary review this Court held that the indictment was sufficient and reversed the judgment of the Court of Appeals and remanded the cause for consideration of appellant's other grounds of error. Beck v. State, 682 S.W.2d 550 (Tex.Cr.App.1985).

On remand the Court of Appeals changed its mind on ground of error number two and again reversed the conviction but this time in an unpublished opinion. The stated reason for the change was an unpublished opinion of this Court handed down after the Court of Appeals' original opinion. See Jimenez v. State (Tex.Cr.App. No. 1022-83, July 10, 1985). The Court of Appeals recognized that Jimenez, being an unpublished opinion, had no precedential value and could not serve as authority but relied for its new decision upon the authorities cited in Jimenez. See Articles 38.01, 38.02 and 38.06, V.A.C.C.P.; 41 Tex.Jur.2d, Oath and Affirmation, § 1 (1963); 61 Tex.Jur.2d, Witnesses, § 125 (1963).

It is important to observe the exact language of the said ground of error number two. Appellant urged "The trial court errored (sic) in admitting to evidence a pen packet that was not shown to be the same person as appeallant (sic)."

This stated ground of error is somewhat in line with the objection made at trial and upon which appellant relies. It is clear appellant is attacking the admission into evidence the pen packet (State's Exhibit No. 18).

On the original appeal the Court of Appeals stated: "In Ground of Error No. Two, appellant contends that evidence of a prior conviction was offered during the punishment phase through the unsworn testimony of a police witness." (Emphasis supplied.) Following remand the Court of Appeals in its unpublished opinion stated: "In Ground of Error No. Two appellant contends that evidence of a prior conviction was offered at the punishment stage upon the unsworn testimony of fingerprint examiner Sergio Lopez." (Emphasis supplied.)

Ground of error number two refers to the admission of a pen packet "that was not shown to be the same person as appellant." The Court of Appeals changed the contention to "evidence" offered "upon" or "through the unsworn testimony" of Lopez. The Court of Appeals misread and mischaracterized the ground of error.

It is important then to examine exactly what happened at trial. At the commencement of the guilt stage of the trial the Rule was invoked. It appears that the witnesses were not then present so they were not sworn as a group. Thereafter the transcription of the court reporter's notes reflect that as each witness was called the witness was sworn by the court. At the commencement of the penalty stage of the trial the parties responded to the court's inquiry they were ready to proceed. The record then reflects:

"THE COURT: All right. Go ahead.

"MR. BRAMBLETT (Prosecutor): The State will waive opening statement and call our first witness.

"THE COURT: Any evidence?

"MR. BRAMBLETT: Yes, Your Honor.

"THE COURT: Okay. Well, go ahead and present your evidence then.

"(Thereupon, a person walks into the courtroom and proceeds to take fingerprints of the Defendant in the presence of the jury.)

"(Thereupon, State's Exhibit Eighteen was marked for identification.)

"(Thereupon, said exhibit, State's Exhibit Eighteen, was handed to Defense Counsel, Mr. Segall.)

"(Thereupon, said exhibit, State's exhibit Eighteen, was handed to Mr. Leeds [Prosecutor].)

"Thereupon,

"SERGIO LOPEZ,

"(Witness not sworn.)

"DIRECT EXAMINATION

"BY MR. LEEDS:

"Q. Would you, please, state your name?

"A. My name is Sergio Lopez.

"Q. Mr. Lopez, how are you employed?

"A. I am a detective with the Identification Bureau of the El Paso Police Department."

There was no objection to the fact that Lopez, the first witness at the penalty stage of the trial, had not been sworn as a witness. Lopez's qualifications as a fingerprint expert were established. He testified that he had personally taken appellant's fingerprints and placed them on State's Exhibit No. 19, and had compared these known prints with the fingerprints in the pen packet, State's Exhibit No. 18, and the prints had been made by the same individual. Appellant did not cross-examine Lopez. When State's Exhibit No. 19 was then offered, appellant simply objected "as no proper predicate has been laid for its introduction." The objection was overruled. The State then called an attorney who was duly sworn. Said witness was an assistant city attorney currently acting as legal advisor to the El Paso Police Department. He testified as to pen packets generally, and as to State's Exhibit No. 18 specifically as to what it contained. He was briefly cross-examined. At the conclusion of his testimony the record reflects:

"MR. LEEDS: Your Honor, at this time the State would offer into evidence State's Exhibit Eighteen.

"MR. SEGALL (Defense Counsel): Your Honor, there has been no proper basis for the entry of State's Exhibit Number Eighteen. There has been no sworn testimony that it is the same man as this man here before the Court.

"MR. LEEDS: Your Honor, Mr. Lopez just testified that the fingerprints were identical.

"THE COURT: All right. It will be admitted into evidence.

"MR. LEEDS: Thank you.

"(Thereupon, State's Exhibit Eighteen was admitted into evidence.)" (Emphasis supplied.)

Thereafter, both sides rested and closed.

During argument at the penalty stage of the trial appellant's counsel argued:

"Now, what do we know about him other than he appears to be over forty years of age? All right. Well, you have this pen packet which alleges that back in 1972 he was convicted of acquisition of property by threat over $50.00, which an unsworn witness said was him. Ladies and gentlemen, you cannot consider this--

"MR. LEEDS: Excuse me, Counselor. Your Honor, that witness was sworn by the Court.

"MR. SEGALL (Defense Counsel): No, sir. We have checked with the Court Reporter. He was not.

"THE COURT: All right. Fine.

"MR. SEGALL: You can't consider it. It's not properly before you.

"MR. LEEDS: Excuse me, Counselor. Your Honor, that's a misstatement of the evidence. The Court ruled that those exhibits were admitted into evidence.

"THE COURT: In the absence of any objection, that may have been a waiver, so, go ahead, Mr. Segall.

"MR. SEGALL: Thank you...."

The court let stand the argument of appellant's counsel that the evidence of the prior conviction was not properly before the jury as well as counsel's instruction for the jury not to consider such evidence.

After the jury retired to deliberate, appellant's counsel asked to make a bill of exception. In the colloquy that followed appellant's counsel insisted that Lopez and the assistant city attorney had not been sworn. The court insisted he had sworn the latter, and counsel agreed but stated: "... Not the fingerprint expert." The Court responded: "Fine, all right." The mistrial motion then made was overruled.

Appellant's objection and ground of error are addressed to the admission of the pen packet (State's Exhibit 18). We have consistently held that a prior conviction alleged for enhancement or a conviction as a part of prior criminal record of a defendant under Article 37.07, V.A.C.C.P., may be established by certified copies of a judgment and a sentence and authenticated copies of the Texas Department of Corrections records including fingerprints, supported by expert testimony identifying them as identical with known prints of the defendant. Vessels v. State, 432 S.W.2d 108 (Tex.Cr.App.1968); Blake v. State, 468 S.W.2d 400 (Tex.Cr.App.1971); Babcock v. State, 473 S.W.2d 941 (Tex.Cr.App.1971); Alvarez v. State, 536 S.W.2d 357 (Tex.Cr.App.1976); Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977); Rios v. State, 557 S.W.2d 87 (Tex.Cr.App.1977); Daniel v. State, 585 S.W.2d 688, 690 (Tex.Cr.App.1979) and cases there cited. Such procedure has been approved since it complied with Article 3731a, V.A.C.S., in effect at the time of appellant's trial. See Vessels, supra; Broussard v. State, 363 S.W.2d 143 (Tex.Cr.App.1963).

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