Carpenter v. State

• Decision Date: 01 December 1989
• Docket Number: No. 05-88-01264-CR,05-88-01264-CR
• Citation: 781 S.W.2d 707
• Parties: Lance Dion CARPENTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 707

781 S.W.2d 707

Lance Dion CARPENTER, Appellant, v. The STATE of Texas, Appellee.

No. 05-88-01264-CR.

Court of Appeals of Texas Dallas.

Dec. 1, 1989.

Rehearing Denied Jan. 3, 1990.

Donald R. Scoggins, Dallas, for appellant.

Teresa Tolle, Dallas, for appellee.

Before WHITHAM, ROWE and WHITTINGTON, JJ.

OPINION

WHITHAM, Justice.

Appellant appeals a conviction for aggravated robbery. Enhanced by one prior conviction, the jury assessed punishment at seventy-five years in the Texas Department of Corrections and a fine of $10,000.00. In his first point of error, appellant contends that the trial court committed reversible error by admitting into evidence a pen packet not properly authenticated under Rule 902 of the Texas Rules of Criminal Evidence. We agree. Accordingly, we reverse and remand.

We begin by quoting the governing provisions of rule 902:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

* * * * * *

(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraphs (1), (2), or (3) of this rule or complying with any statute or court rule prescribed pursuant to statutory authority.

* * * * * *

(1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any state, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(2) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(3) Foreign Public Documents. A document purporting to be executed or attested in his official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or if in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. The final certification shall be dispensed with whenever both the United States and the foreign country in which the official record is located are parties to a treaty or convention that abolishes or displaces such requirement, in which case the record and the attestation shall be certified by the means provided in the treaty or convention.

It is undisputed that the provisions of TEX.R.CRIM.EVID. 902(10) do not apply. Indeed, this appears correct in that there is no affidavit before us in compliance with the "business records accompanied by affidavit" provisions of rule 902(10).

During the punishment phase of appellant's trial, the court admitted State's exhibit 5, tendered as a pen packet. The first page of the exhibit contains three forms for signature. The first form, signed by S.O. Woods, Jr., reads:

STATE OF TEXAS

COUNTY OF WALKER

I, S.O. Woods, Jr. HEREBY CERTIFY THAT I AM THE Record Clerk of the Texas Department of Corrections, a penal institution of the State of Texas, situated in the County and State aforesaid. That in my legal Custody as such officer are the original files and records of persons heretofore committed to said institution: that the (x) photograph (x) fingerprints and (x) commitments, including judgement [sic] and sentence, of LANCE D. CARPENTER TDC# 437819 CAUSE# 6765; a person heretofore committed to said penal institution and who served a term of imprisonment therein: that I have compared the attached copies with their respective originals now on file in my office and each thereof contains, and is a full, true and correct transcript and copy from its said original.

IN WITNESS WHEREOF, I have hereunto set my hand seal this 11th day of June, 1988.

/S/ S.O. Woods, Jr., Records Clerk

For the purposes of this opinion, we assume, but do not decide, that the Record Clerk of the Texas Department of Corrections, a penal institution of the State of Texas, situated in Walker County, Texas, is a public office within the meaning of rule 902(4). The second form signed by Frank J. Robinson, as judge of the County Court of Walker County, Texas, follows and reads:

THE STATE OF TEXAS

COUNTY OF WALKER

I, Frank J. Robinson PRESIDING JUDGE OF THE COUNTY COURT, do hereby Certify that S.O. Woods Jr., whose name is subscribed to the above Certificate, was at the date thereof, and is now Record Clerk of the Texas Department of Corrections, and is the legal keeper and the officer having the legal custody of the original records of the said Texas Department of Corrections that the said Certificate is in due form and that the signature subscribed thereto is his genuine signature.

IN WITNESS WHEREOF, I have hereunto subscribed my name in my official character as such Judge, in the County and State aforesaid, this the 11th day of June, 1988.

/S/ Frank J. Robinson, JUDGE

of the County Court, Walker County, Texas

The third form appears to be a form to be signed by James D. Patton, Clerk of the County Court of Walker County, Texas, which reads as follows:

THE STATE OF TEXAS

COUNTY OF WALKER

I, James D. Patton CLERK OF THE COUNTY COURT of the County of Walker, State of Texas, which Court is a court of records having a seal which is annexed hereto, do certify that Frank J. Robinson whose name is subscribed to the foregoing Certificate of the due Attestation, was at the aforesaid subscribing, the same Judge of the County Court aforesaid, and was duly commissioned, qualified and authorized by LAW to execute the said Certificate, and I do further certify that the signature of the above named Judge of the said Certificate of due Attestation is genuine.

IN WITNESS WHEREOF, I have hereunto set my hand and annexed the seal of the County Court at my office in said County, this the 11th day of June, 1988

________________________CLERK

County Court, Walker County, Texas

However, no signature or court seal is present on this final form.

This first page of State's exhibit 5 appears to be a form prepared to meet the requirements of Title 28 U.S.C. § 1739, designated "Attestation by Custodian, Certificate of Presiding Judge Certificate of Clerk to official character of Judge." We ...