Reed v. State

• Decision Date: 15 May 1991
• Docket Number: No. 222-90,222-90
• Citation: 811 S.W.2d 582
• Parties: Jerry REED, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 582

811 S.W.2d 582

Jerry REED, Appellant, v. The STATE of Texas, Appellee.

No. 222-90.

Court of Criminal Appeals of Texas En Banc.

May 15, 1991.

John H. Hagler (on appeal only), Dallas, for appellant.

John Vance, Dist. Atty., Kathleen A. Walsh and Colleen Doolin, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

MALONEY, Judge.

We granted the State's Motion for Rehearing to re-examine our opinion on original submission. ¹ Our prior opinion is withdrawn.

Appellant was charged by indictment with possession of a controlled substance, heroin, TEX.HEALTH & SAFETY CODE ANN. § 481.115(a)-(b) (Vernon 1990), enhanced by a prior conviction for burglary, ² V.T.C.A. Penal Code, § 12.42(c). The appellant pled guilty and the trial court assessed punishment at twenty (20) years confinement in the Texas Department of Criminal Justice, Institutional Division (TDCJID). ³ The Fifth Court of Appeals reversed appellant's conviction as to punishment in a published opinion, Reed v. State, 785 S.W.2d 412 (Tex.App.--Dallas 1990).

Appellant claimed on direct appeal that the trial court erred in overruling his objection to admission of a penitentiary packet from the TDCJID which contained a copy of the judgment and sentence of appellant's previous conviction for burglary. Appellant argued that the copies of the judgment and sentence were inadmissible because, although they were certified by the custodian of records at the TDCJID, they did not reflect a separate certification by the district clerk of the original convicting court in Dallas County. Based on this Court's opinion in Dingler v. State, 768 S.W.2d 305 (Tex.Cr.App.1989), the court of appeals held that the pen packet should not have been admitted because the copy of the judgment and sentence contained therein did not reflect certification from the district clerk of the convicting court.

Dingler held that the copy of the judgment and sentence in the pen packet, in order to be admissible as self-authenticated document(s), must reflect that the original copy received by TDCJID was certified by the district clerk of the convicting court. See Dingler, supra, at 306. Dingler was predicated upon TEX.REV.CIV.STAT.ANN. art. 3731a ⁴, now repealed, and not on the current Texas Rules of Criminal Evidence 901 and 902. The rule of Dingler has been carried forward, however, in cases construing Rules 901 and 902. ⁵

We have reconsidered the Dingler opinion and find that it is no longer valid in light of Rules 901 and 902, is inconsistent with prior Texas case law, ⁶ and is also inconsistent with the federal cases decided under the federal rules of evidence, ⁷ which are the source of Rules 901 and 902 of the Texas Rules of Criminal Evidence. Dingler goes the way of former Art. 3731a, § 4, V.A.C.S., now repealed, and is overruled.

In the usual case where this issue arises, there are two separate sets of records of the judgment and sentence--the district clerk of the convicting court retains the originals of the judgment and sentence on file in that court and sends a certified copy to TDCJID which, in turn, retains the certified copies as part of the inmate's permanent file in the penitentiary. See V.A.C.C.P. art. 42.09 § 8 (Copies of the judgment and sentence are delivered to the Director at the time a convicted defendant is transferred to the TDCJID). ⁸ The district clerk is the legal custodian of the originals on file in the convicting court and the records clerk at TDCJID is the legal custodian of the certified copies on file at the penitentiary. Typically, the State introduces the certified copies contained in the penitentiary file or "pen packet" to prove the prior conviction for enhancement purposes. ⁹

Previously, under Dingler and its construction of Article 3731a, TEX.REV.CIV.STAT.ANN., this Court required that the copies in the pen packet reflect the certification by the clerk of the convicting court in order to be admissible as properly authenticated documents. Dingler, 768 S.W.2d at 306. The problem arises when, as in this case, the copies of the judgment and sentence do not reflect certification by the convicting court clerk, but only by the record clerk at TDCJID. ¹⁰ The question then is whether Rule 901 or 902 of the Texas Rules of Criminal Evidence requires that the custodian who certifies the records must be custodian of the original records, or if certification by the custodian of a set of copies is likewise sufficient. ¹¹

Neither Rule 901 nor 902 expressly provides that the certifying custodian of a document may only be the custodian of the original record. Certification by the records custodian as a means of authentication is specifically addressed in Rule 902, which provides that certain types of documents are self-authenticating. Rule 902 states in pertinent part:

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 ... 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....

Paragraph (2) of the rule provides that a document certified in accordance with paragraph (4), supra, but not under seal, will be self-authenticating if a public officer having a seal certifies that "the signer has the official capacity and that the signature is genuine." Tex.R.Crim.Evid. 902(2).

The copies of the judgment and sentence in the pen packet in the instant case were certified by the record clerk of the TDCJID in accordance with 902(4). The clerk attested as follows:

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 and sentence, of Jerry Keith Reed TDC # 243306 CAUSE # C74-5767-PH, C73-1115-NH, C74-3908-PH 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. ¹²

This statement was dated and signed by the record clerk. The record clerk's certification is then attested by the presiding judge of the county court of Walker County in which the TDCJID is located. In accordance with Rule 902(2), Tex.R.Crim.Evid., the judge certified under seal that the record clerk of TDCJID is the legal custodian of the records and that the signature is genuine. The judge's certificate is further attested by the county clerk, who certified that the judge was authorized by law to execute the certificate.

In construing the Texas Rules of Criminal Evidence, which were patterned after the Federal Rules of Evidence, we are guided by federal cases interpreting the federal rules, although not bound thereby. See C. Miller, Texas Rules of Evidence: Article V. Privileges, 16 VOICE FOR THE DEFENSE 40 (October 1986); S.H. Clinton, Texas Rules of Evidence: Genesis and General Provisions, 16 VOICE FOR THE DEFENSE 26 (October 1986). Federal courts have held that a proper certification by the custodian of records at a state correctional institution is sufficient authentication under Rule 902(4) of a copy of a prior conviction contained in that institution's files.

In United States v. Darveaux, 830 F.2d 124 (8th Cir.1987), the court held that the record clerk of the TDCJID was legal custodian of the pen packet containing copies of the defendant's prior conviction, and that the conviction record, certified by the TDCJID record clerk, was therefore self-authenticating in a subsequent prosecution. Likewise, in United States v. Dancy, 861 F.2d 77 (5th Cir.1988), the court held that the documents in the defendant's pen packet prepared by the California Department of Corrections and certified by the CDC record clerk, including copies of the defendant's prior criminal judgment and fingerprint card, were self-authenticating in a subsequent prosecution. ¹³ We are persuaded that the rationale of the federal courts on this point is correct and we therefore hold that the TDCJID record clerk's certification of the pen packet copies of the judgment and sentence constitutes proper authentication in accordance with Rule 902(4) of the Texas Rules of Criminal Evidence.

While a document may be properly authenticated under either of Rules 901 or 902, and need not be authenticated under both, we nevertheless address authentication under Rule 901. Rule 901(a) simply sets out the general rule that the requirement of authentication is satisfied by extrinsic evidence that the matter in question is what its proponent claims, without limiting the type of extrinsic evidence which may be used. Rule 901(b) then provides several illustrations of the type of extrinsic evidence which would satisfy the requirement of authentication. One of the illustrations, example (7), specifically addresses "Public records and reports," and provides that authentication is established by "[e]vidence that a writing authorized by law to be recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept." Tex.R.Crim.Evid. 901(b)(7).

Thus, one means of authenticating a public record under 901 is showing that the document is from a public office authorized to keep such a record. 5 J. Weinstein & M. Berger, Weinstein's Evidence § 901(b)(7), at 901-98 (1990). In the instant case, it seems clear that TDCJID is authorized to keep...