Cunningham v. State
| Decision Date | 13 August 1991 |
| Docket Number | No. 05-90-00398-CR,05-90-00398-CR |
| Citation | 815 S.W.2d 313 |
| Court | Texas Court of Appeals |
| Parties | Wayne Travis CUNNINGHAM, Appellant, v. The STATE of Texas, Appellee. |
Renie McClellan, Cedar Hill, for appellant.
Sharon Batjer, Dallas, for appellee.
Before ROWE, LAGARDE and OVARD, JJ.
Wayne Travis Cunningham appeals his jury conviction for unlawful possession with intent to deliver cocaine. The jury assessed punishment at life confinement and a $200,000 fine. Cunningham contends that the trial court erred in admitting various convictions and unadjudicated offenses for impeachment and enhancement purposes. We overrule all points of error and affirm the judgment of the trial court.
Undercover Officer Frank Perez testified that he arranged by telephone to meet Cunningham at a McDonald's restaurant to buy one kilogram of cocaine for $24,000, but Cunningham did not appear. Perez then proceeded to an apartment that he had seen Cunningham enter on several occasions. Perez believed it to be Cunningham's "stash house." Cunningham's car was in the driveway. Perez had secured a search warrant for the location. Sergeant McCoy, the officer in charge of the investigation, with the assistance of a tactical squad, executed the warrant and arrested Cunningham in possession of a kilo of cocaine.
In his first two points of error, Cunningham contends that the trial court erred by admitting evidence of prior convictions in cause numbers F82-90751 and F82-92981 during the punishment phase. The trial court's files in both cases were admitted into evidence. In both cases, Cunningham pleaded guilty before a Dallas County magistrate. Yet, neither trial court file contained a referral to the magistrate or an adoption order by the district court. TEX. GOV'T CODE ANN. § 54.307(a) (Vernon 1988). Cunningham argues that, because there was no record that the cases were referred to the magistrate or that the magistrate's actions were adopted, the judgments are void.
The State establishes a prima facie case of proof of a prior conviction by introducing copies of the judgment and sentence in each case used for enhancement and connecting them with the defendant. Johnson v. State, 725 S.W.2d 245, 247 (Tex.Crim.App.1987). Once the State makes that prima facie showing, the burden shifts to the defendant to make an affirmative showing of any defect in the judgment. Smith v. State, 683 S.W.2d 393, 407 (Tex.Crim.App.1984). Where procedural requirements do not affirmatively appear in the record to have been violated, the presumption of regularity must prevail. Jones v. State, 646 S.W.2d 449, 449 (Tex.Crim.App.1983); Ex parte Pardun, 744 S.W.2d 644, 645 (Tex.App.--Dallas 1988, pet. ref'd). Thus, in his collateral attack on this conviction, Cunningham had the burden to affirmatively show that the judgment was void. Hankins v. State, 646 S.W.2d 191, 200 (Tex.Crim.App.1981); Randall v. State, 735 S.W.2d 678, 681 (Tex.App.--Dallas 1987, no pet.).
The Magistrate's Act provides that, when a judge refers a case to a magistrate, the judge must issue an order of referral specifying the magistrate's duties. TEX. GOV'T CODE ANN. § 54.307(a) (Vernon 1988). Section 54.312 specifically provides that actions taken by the magistrate become the decree of the referring court "if the court does not modify, correct, reject, reverse, or recommit an action of the magistrate." TEX. GOV'T CODE ANN. § 54.312 (Vernon 1988). On a collateral attack, in the absence of an affirmative showing to the contrary, we will not assume that the case was not referred or that the district judge violated the Magistrate's Act by neglecting to properly review and adopt the magistrate's actions. See, e.g., Randall, 735 S.W.2d at 681 (); see also Kelley v. State, 676 S.W.2d 104, 108 (Tex.Crim.App.1984) ().
By introducing copies of the judgments and sentences, the State established a prima facie case that the judgments were valid. The district judge signed the judgments. Cunningham made no affirmative showing that the cases were not referred by the district judge to the magistrate or that the judgments were not adopted. Because Cunningham's convictions are presumptively valid, absent an affirmative showing to the contrary, we conclude that the trial court properly admitted evidence of Cunningham's prior convictions. Points of error one and two are overruled.
In points three and four, Cunningham attacks the admission into evidence of a 1972 prior conviction in cause number 167486. In point three, he complains that the use of cause number 167486 at the punishment stage for enhancement purposes was error because it was not a final conviction. In point four, he complains that its admission violated rule 609(e) of the rules of criminal evidence. That rule provides that "[p]endency of an appeal renders evidence of a conviction inadmissible." TEX.R.CRIM.EVID. 609(e).
In point three, Cunningham claims that evidence of his conviction in cause number 167486 alleged for enhancement purposes in the third paragraph of the indictment was improperly admitted in the punishment stage because there was no proof that it was a final conviction as required by section 3(a) of article 37.07 of the code of criminal procedure. TEX.CODE CRIM.PROC.ANN. art. 37.07, § 3(a) (Vernon 1981).
The code of criminal procedure authorizes the State to offer evidence of a defendant's prior criminal record at the punishment stage of the trial only if such prior convictions are final. TEX.CODE CRIM.PROC.ANN. art. 37.07, § 3(a) (Vernon 1981); Morgan v. State, 515 S.W.2d 278, 280 (Tex.Crim.App.1974). When the State alleges a prior conviction for enhancement, the State bears the prima facie burden to show the finality of the conviction. Johnson v. State, 784 S.W.2d 413, 414 (Tex.Crim.App.1990). When a prior conviction appears to be final on its face, the burden shifts to the defendant to refute such finality. Ashley v. State, 527 S.W.2d 302, 305 (Tex.Crim.App.1975). However, the presumption of finality is defeated if it shows that an appellant gave notice of appeal. Jones v. State, 711 S.W.2d 634, 636 (Tex.Crim.App.1986). If the State's evidence raises the question of the disposition of the appeal, the State must produce evidence of finality in order to meet its burden. Jones, 711 S.W.2d at 636. A conviction from which an appeal has been taken is not considered to be a final conviction until the conviction is affirmed by the appellate court and that court's mandate of affirmance becomes final. Jones, 711 S.W.2d at 636.
The record reflects the following objection outside the jury's presence [DEFENSE COUNSEL]: Judge, let me take first what has been numbered as State's Exhibit--State's Exhibit No. 5, which purports to be a penitentiary packet on Cause No. 167486 from the Harris County. Judge, in that particular exhibit, the State--or the Defense is going to object to the bottoms of both of the fingerprint cards that are contained within there, and we are going to object in its entirety to the mandate and opinion of the Court of Criminal Appeals that is stapled to the back of that penitentiary packet. I would say that the mandate and the opinion of the Court affirming that conviction is not part of that penitentiary packet and is not covered by the certification as--the Court can't see it. Stapled on the back of the penitentiary packet.
Upon the evidence being offered before the jury, the defense renewed its objection made outside the jury's presence. The Court stated: The trial court's disallowance of the opinion in the pen packet resulted, albeit inadvertently, in the exclusion of the mandate in Cunningham's case when the pen packet was introduced before the jury.
Assuming, without deciding, that the trial court improperly admitted evidence of Cunningham's conviction in cause number 167486, we must determine whether its admission constituted harmful error. The Texas Court of Criminal Appeals has articulated guidelines for the harmful error analysis. See Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App.1989). The analysis involves a two-step process. First, we must isolate the error and all its effects, and second, ask whether a rational trier of fact might have reached a different result if the error and its effects had not resulted. Harris, 790 S.W.2d at 587-88. The factors to be considered in determining the effects of the error are as follows:
1. the source of the error;
2. the nature of the error;
3. whether or to what extent it was emphasized by the State, and its probable collateral implications;
4. how much weight a juror would probably place upon the error; and
5. whether declaring the error harmless would encourage the State to repeat it with impunity.
Applying the harmful error analysis to this case, we first note that the assumed error is in the nature of the improper admission of evidence. On cross-examination during the guilt-innocence phase of the trial, Cunningham admitted to the conviction number 167486 and to three other convictions. The State used the convictions to show Cunningham's prior criminal record. However, there were no probable collateral implications of this evidence because the State did not use the evidence for enhancement purposes.
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