Shaw v. State
| Decision Date | 09 April 1987 |
| Docket Number | No. 01-86-00479-CR,01-86-00479-CR |
| Citation | 728 S.W.2d 889 |
| Parties | Kenneth Dwayne SHAW, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Charles H. Portz, III, Houston, for appellant.
John B. Holmes, Jr. Harris County Dist. Atty., Kathlyn Giannaula, Jay Karahan, Harris County Asst. Dist. Attys., Houston, for appellee.
Before EVANS, C.J., and SAM BASS and LEVY, JJ.
This is an appeal from a conviction for involuntary manslaughter. After finding appellant guilty and the enhancement paragraph to be true, the jury assessed punishment at 15 years confinement and a $10,000 fine.
Appellant brings six points of error. Appellant's first point of error contends that the indictment for involuntary manslaughter was fundamentally defective because it failed to allege that appellant's intoxication was voluntary. Appellant asserts that the voluntariness of intoxication is a material element of the offense and that an indictment that fails to allege all the elements of the offense is fundamentally defective.
There is no fundamental error in indictments for cases, like this one, in which the indictment was presented after December 1, 1985. Tex.Code Crim.P.Ann. art. 1.14(b) (Vernon Supp.1987).
The first point of error is overruled.
Appellant's second point of error asserts that the trial court erred in permitting Dr. Bellas to testify from an autopsy report where the State failed to show that Dr. Bellas was a records custodian.
The record reflects that Dr. Bellas, an assistant medical examiner, testified on direct examination, as follows:
Q. Now, did--let me ask this: Do you have care, custody and control of the records of the Harris County Medical Examiner's Office?
A. Yes. I do.
Q. And are these records made in the ordinary and regular course of business of the Harris County Medical Examiner's Office?
A. Yes, they are.
Q. Are they made by someone who has personal knowledge of the acts, events of conditions depicted within those records?
A. Yes.
Q. And are those records made at or near the time of the act, event or condition reflected in those records or reasonably soon thereafter?
A. Yes, they are.
On voir dire examination, appellant's counsel questioned Dr. Bellas regarding the autopsy report.
Q. Doctor, the reports that you brought with you today, who supplied those reports to you before you came to court?
A. Who signed it?
Q. Who gave them to you?
A. I brought directly from my office.
Q. Okay. Who gave them to you?
A. From the files?
Q. Was there someone that gave them to you at the office to bring here?
A. Yes. The secretary, which is for these specific organization of the files
Q. Then the secretary would be the custodian of those records?
A. What?
Q. The secretary would be the custodian of those records?
A. We are the custodian of the records. They file the records.
Q. Okay. They file the records and keep them?
A. Yes.
Q. Okay. So, you don't keep those records at all times. Someone else takes care of them?
A. No. That's in another department.
Q. So you're not the custodian of these records, then, are you, sir?
A. Directly, no.
After questioning by appellant's counsel, the prosecutor again asked the witness about the records.
Q. Dr. Bellas, do you have authorization by Joseph Jachimczyk, the medical examiner of Harris County, to take these records and use them in the course of your testimony in court?
A. All the way.
Q. And in fact, you're authorized to take records of other doctors who performed medical examinations on bodies and actually take them to court and testify from them?
A. Definitely.
Q. Have you done that on few or many occasions?
A. Many occasions.
Q. In the courts here in Harris County, Texas.
A. Yes.
Q. So, you're authorized, and in that sense you have care, custody and control and authorization of the medical examiner to bring these records to court?
A. Any case.
The trial court overruled appellant's objection that the State had not established that Dr. Bellas was the records custodian. The trial court stated that Dr. Bellas had testified that he was the custodian.
Tex.Rev.Civ.Stat.Ann. art. 3737e (1951) (repealed 1986) provides in pertinent part:
Sec. 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:
(a) It was made in the regular course of business;
(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.
Sec. 2. The identity and mode of preparation of the memorandum or record in accordance with the provisions of the paragraph one (1) may be proved by the testimony of the entrant, custodian or any other qualified witness even though he may not have personal knowledge as to the various items or contents of such memorandum or record. Such lack of personal knowledge may be shown to affect the weight and credibility of the memorandum or record but shall not affect its admissibility.
It is well settled that autopsy reports prepared by county medical examiners are admissible as business records or official records or both. Burleson v. State, 585 S.W.2d 711, 712 (Tex.Crim.App.1979). Dr. Bellas testified that he was the custodian of the records and that he had "care, custody and control and authorization of the medical examiners to bring these records to court." Dr. Bellas' testimony was sufficient to satisfy the statutory predicate for the introduction of the autopsy reports.
Appellant's second point of error is overruled.
Appellant's third point of error contends that the parole charge, Tex.Code Crim.P.Ann. art. 37.07(4) (Vernon Supp.1987), is unconstitutional because it violates separation of powers. Appellant's fourth point of error urges that the parole charge creates an irreconcilable conflict and is a misleading jury instruction.
Appellant concedes that no objection to the parole charge based on constitutional grounds was made at trial. This Court has held that the issue of the constitutionality of article 37.07(4) may not be raised on appeal unless the issue was first raised in the trial court. Casares v. State, 712 S.W.2d 818 (Tex.App.--Houston [1st Dist.] 1986, pet. granted 1987). Implicit in the Casares holding is that the article 37.07(4) instruction does not constitute fundamental error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g).
Because appellant failed to raise the constitutionality of article 37.07(4) in the trial court, he failed to preserve any error for review.
Appellant's third point of error is overruled.
Appellant's fourth point of error urges that the trial court committed fundamental error in informing the jury about the existence of parole, but also instructing the jury not to attempt to determine how much time the appellant would actually serve. This instruction, appellant asserts, is fundamentally misleading.
Appellant relies heavily on the holding of Rose v. State, 05-85-1136-CR, (Tex.App.--Dallas, Aug 11, 1986), rehearing en banc, 724 S.W.2d 832 (Tex.App.--Dallas, 1986). The original Rose opinion has been withdrawn and, on rehearing, the Dallas Court of Appeals, sitting en banc, reversed its earlier holding. In Rose II, the court of appeals stated that:
Appellant also contends that he was denied a fair and impartial trial because the instructions are self-contradictory and misleading in that they require the jurors to distinguish between the existence of the parole law in general terms and the manner of its application to the case of an individual defendant. There is nothing inherently contradictory or confusing about this distinction or the way it is described in the statute. We must not underestimate the ability of the average juror. The final instruction is no more complex or abstract that other portions of the charge in a criminal case, e.g., the application of the law to the facts. We hold that the required jury instructions present no irreconcilable conflict--they clearly tell the jury "not to consider the manner in which the parole law may be applied to this particular defendant."
We agree with the holding of Rose II; the jury instructions do not contain an irreconcilable conflict.
Appellant's fourth point of error is overruled.
A videotape of appellant was made shortly after his arrest; this videotape was inadvertently destroyed and was not available at trial. Appellant's fifth and sixth points of error address the effect of the destruction of the videotape. Appellant's fifth point of error contends that the trial court committed reversible error in failing to instruct the jury that they could consider the fact that the videotape was destroyed in considering the credibility of the State's witness on the issue of intoxication. Appellant's sixth point of error asserts that the trial court erred in permitting a police officer to testify concerning appellant's behavior while being videotaped because the videotape had been destroyed and was not available at trial.
Appellant was originally charged with driving while intoxicated. Tex.Rev.Civ.Stat.Ann. art. 6701l -1, note, sec. 24 (Vernon Supp.1987) provides that each county with a population of 25,000 or more shall purchase and maintain videotape equipment in order to...
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