Handspur v. State, 05-89-00082-CR

• Decision Date: 14 June 1990
• Docket Number: No. 05-89-00082-CR,05-89-00082-CR
• Citation: 792 S.W.2d 239
• Parties: Melvin Earl HANDSPUR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 239

792 S.W.2d 239

Melvin Earl HANDSPUR, Appellant, v. The STATE of Texas, Appellee.

No. 05-89-00082-CR.

Court of Appeals of Texas Dallas.

June 14, 1990.

Discretionary Review Granted

Oct. 3, 1990.

Renie McClellan, Cedar Hill, for appellant.

Kathleen A. Walsh, Dallas, for appellee.

Before ENOCH, C.J., and BAKER, J., and ONION ¹, J. (Retired, Sitting by Assignment).

OPINION

BAKER, Justice.

Melvin Earl Handspur, appellant, appeals from a conviction for burglary of a habitation. The trial court assessed punishment, enhanced by two prior convictions, at thirty years' confinement. In his sole point of error, appellant complains of the admission of improperly authenticated pen packets. The recent decision of the Court of Criminal Appeals in Reed v. State, No. 222-90 (Tex.Crim.App. May 9, 1990), is dispositive of the issue in this case. We reverse the trial court's judgment and remand this cause to the trial court for further proceedings not inconsistent with this opinion.

FACTS

Two enhancement paragraphs contained in the indictment set forth appellant's prior convictions for the offenses of theft and unauthorized use of a vehicle. Appellant pled not true to each paragraph. The appellant elected to have the trial court assess punishment, and after finding the enhancement paragraphs to be true, punishment was assessed at thirty years' confinement. During the punishment stage of the trial, the court admitted State's exhibits numbers three and four. Appellant objected to the admission of these exhibits, contending that although the penitentiary packet was properly authenticated by the Texas Department of Corrections (now the Texas Department of Criminal Justice, Institutional Division), it contained copies of judgments and sentences for prior felony convictions which were not properly authenticated by the district clerk of the convicting court.

In his sole point of error, appellant contends that exhibits three and four (the pen packets) should not have been admitted, and that without them, there is insufficient evidence to support the finding of true to the enhancement paragraphs. Appellant argues that the copies of the prior judgments and sentences contained in the exhibits were not properly admitted under rule 902(4) of the Texas Rules of Criminal Evidence. Responding, the State argues that the admissibility of this evidence is governed by both rules 901 and 902 of the Texas Rules of Criminal Evidence and that under these rules, this evidence is admissible. See TEX.R.CRIM.EVID. 901(b)(7) and 902(4).

In Reed v. State, 785 S.W.2d 412 (Tex.App.--Dallas 1990) (Reed I ), after considering the recent remand of Rodasti v. State, 786 S.W.2d 294 (Tex.Crim.App.1989) (Rodasti II ), another panel of this Court held that, "in light of Dingler [v. State, 768 S.W.2d 305 (Tex.Crim.App.1989) ] ... the pen packet was not properly authenticated, and thus was not admissible under Texas Rules of Criminal Evidence 901 or 902." ² Reed, 785 S.W.2d at 415. Reed was recently affirmed and adopted by per curiam opinion of the court of criminal appeals in Reed v. State, No. 222-90 (Tex.Crim.App. May 9, 1990) (Reed II ). ³ We hold that the uncertified copies of the judgment and sentence in this case should not have been admitted.

Because there was error in the admission of the evidence, we must reverse the trial court's judgment unless we determine beyond a reasonable doubt that the error made no contribution to the punishment. TEX.R.APP.P. 81(b)(2). Appellant was convicted of burglary of a habitation, a first degree felony. Under section 12.32 of the Texas Penal Code, the range of punishment is life, or for any term of not more than ninety-nine years or less than five years. TEX.PENAL CODE ANN. § 12.32 (Vernon Supp.1990). Appellant's punishment was set at thirty years. While appellant was assessed punishment within the range set for a first degree felony without any enhancement, we cannot determine beyond a reasonable doubt that the admission of the uncertified copies of the sentence and judgment of appellant's prior convictions made no contribution to the punishment. TEX.R.APP.P. 81(b)(2). Appellant's sole point of error is sustained. ⁴

We REVERSE the trial court's judgment and REMAND this cause to that court for further proceedings not inconsistent with this opinion. See Carpenter v. State, 781 S.W.2d 707, 710 (Tex.App.--Dallas 1989, pet. ref'd); TEX.CODE CRIM.PROC.ANN. art. 44.29(b) (Vernon Supp.1990).

ENOCH, C.J., concurs with an opinion.

ONION, J., dissents with an opinion.

ENOCH, Chief Justice, concurring.

I write separately to make the strong request that the Court of Criminal Appeals reconsider its recent actions. These actions, which ostensibly follow the pre-rules decision in Dingler, not only fail to explain why Dingler ignores a line of the court's own cases, but make short shrift of rules that ought to be given more than a cursory tip of the hat. Justice Onion's dissent is the better reasoned course. But for being hog-tied by our superior court, the majority, too, believes the new rules allow admission of the court documents in the pen packet.

ONION, Justice (Retired, Sitting by Assignment), dissenting.

I respectfully dissent. Surely, neither this Court nor the Court of Criminal Appeals wants to be in the position of Pogo, the cartoon character, who said: "We have met the enemy and they're us." Yet, that is eventually what we will discover if continued homage is paid to Dingler v. State, 768 S.W.2d 305 (Tex.Crim.App.1989) (Dingler II ), as was done in Reed v. State, 785 S.W.2d 412 (Tex.App.--Dallas 1990) (Reed I ), which in turn was "adopted" by the Court of Criminal Appeals in Reed v. State, No. 222-90 (Tex.Crim.App. May 9, 1990) (Reed II ) (not yet reported).

The Dingler II opinion, decided under former article 3731a ¹ of the Texas Revised Civil Statutes Annotated, is a flawed opinion. With all due respect, it was and is not "sound," and the opinion should not be the linchpin for future cases decided under rules 901 and 902 of the Texas Rules of Criminal Evidence. Despite the manufacturer's label on the opinion, one day, with continued use, the wheel will come off, and this will be particularly true when rules 901 and 902 are interpreted in contexts other than with respect to self-authentication of pen packets. When decided, Dingler II was inconsistent with earlier cases decided under former article 3731a as well as flawed in its reasoning and is also inconsistent with federal cases decided under the federal rules of evidence, the source of rules 901 and 902 of the Texas Rules of Criminal Evidence.

In his sole point of error appellant urges that the "trial court erred in finding the allegations of the enhancement paragraphs of the indictment to be true as the evidence was insufficient to sustain the findings." Appellant argues that the authenticated pen packets offered by the State contained judgments and sentences which were not also certified by the district clerk of Dallas County, where the prior convictions were obtained. Thus, appellant contends there was insufficient probative evidence to support the trial court's findings at the penalty stage of the trial.

At appellant's trial, which commenced on November 7, 1988, the State, in proving the enhancement allegations, offered duly authenticated pen packets ² which included judgments, sentences, fingerprints, photographs, etc., along with the testimony of a fingerprint expert that the known fingerprints of appellant were identical with those in the pen packet. No other evidence was offered.

Appellant's objection, when the pen packets were offered, was "The contents ... not the penitentiary contents, but the judgment and sentence or whatever ... the court documents that are in there are not certified copies of any court documents and I object on those grounds." The objection was overruled. Appellant did not challenge the validity of the prior convictions nor claim a lack of connection with the same. He contends only that since the judgments and sentences in the packets were not certified by the district clerk there was a lack of self-authentication, at least as to the judgments and sentences, and they were not admissible into evidence in absence of a proper predicate.

The very question presented has sharply divided the courts of appeals over the proper application of the Texas Rules of Criminal Evidence, although the domino theory seems to be in current vogue since Rodasti v. State, 749 S.W.2d 161 (Tex.App.--Houston [1st Dist.] 1988) (Rodasti I ) (decided under rules 901 and 902 of the Texas Rules of Criminal Evidence) was remanded by the Court of Criminal Appeals, Rodasti v. State, 786 S.W.2d 294 (Tex.Crim.App.1989) (Rodasti II ), for further consideration in light of Dingler v. State, 768 S.W.2d 305 (Tex.Crim.App.1989) (Dingler II ) (decided under former article 3731a of the Texas Revised Civil Statutes). While the instant case is controlled by the Texas Rules of Criminal Evidence, it is helpful to briefly examine former practice and cases decided under former article 3731a of the Texas Revised Civil Statutes.

The use of certified copies of a judgment and a sentence and authenticated copies of prison records including judgment, sentence, photographs, and fingerprints, supported by expert testimony identifying the fingerprints as identical with known prints of the defendant, has been the most common method of proving prior convictions. Littles v. State, 726 S.W.2d 26, 32 (Tex.Crim.App.1987) (op. on reh'g); Beck v. State, 719 S.W.2d 205, 209 (Tex.Crim.App.1986). It is, however, only one method or way of proving prior convictions. Beck, 719 S.W.2d at 209; Brumfield v. State, 445 S.W.2d 732, 740 (Tex.Crim.App.1969); Alridge v. State, 732 S.W.2d 395, 396 (Tex.App.--Dallas 1987, pet. ref'd). Certainly the various methods normally enumerated cannot be said to be exclusive means of proving prior convictions. Littles, 726 S.W.2d at 32. Further, the...