Clark v. State

704 S.W.2d 557
CourtCourt of Appeals of Texas
DecidedFebruary 5, 1986
DocketNo. 09-85-092 CR
StatusPublished
Cited by5 cases

This text of 704 S.W.2d 557 (Clark v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. State, 704 S.W.2d 557 (Tex. Ct. App. 1986).

Opinion

OPINION

BURGESS, Justice.

Robert Bruce Clark was indicted for possession of a controlled substance: methamphetamine. In addition, the indictment alleged a prior felony conviction. At a jury trial, the jury found the defendant guilty and assessed his punishment at fifty years confinement in the Texas Department of Corrections, after having found the enhancement count “true”. Mr. Clark appeals bringing forth seven grounds of error.

The first three grounds of error complain of the introduction of three photographs. The objection at trial and the complaint here is that the photographs were admitted without any predicate having been established. All that is required to introduce a photograph is testimony from a witness that the photograph truly and accurately represents the object or scene. Williams v. State, 461 S.W.2d 614 (Tex.Crim.App.1971).

The exchange concerning the actual tender and admission of the exhibits is as follows:

“Q. I’m going to show you what’s been marked for identification purposes as State’s Exhibits Numbers ‘Twelve’, ‘Thirteen’ and ‘Fourteen’. I’ll ask you to look at those and tell the Court if you can identify the car and the individual in those pictures? (exhibiting)
“A. (examining) Yes, I can.
“Q. And whose car is that?
“[DEFENSE COUNSEL]: Your Honor, I object, Number One: Until they are introduced, and Number Two: That’s asking her for a legal conclusion, as to whose car that is.
“THE COURT: What’s the numbers, Mr. [PROSECUTOR], ‘Twelve’, ‘Thirteen’ and ‘Fourteen’?
“[PROSECUTOR]: Yes, sir.
“THE COURT: That objection is sustained, due to the fact they are not in evidence.
“[PROSECUTOR]: Okay. I’m just trying to get them identified. State tenders State’s ‘Twelve’, ‘Thirteen’ and ‘Fourteen’ at this time, (tendering)
“THE COURT: Any objection?
[563]*563“[DEFENSE COUNSEL]: (examining) Object on the basis that no predicate has been set forth by Counsel.
“THE COURT: Overruled. ‘Twelve’,
‘Thirteen’ and ‘Fourteen’ are admitted.”

Prior to this exchange, another witness testified:

“Q. I hand you what’s been marked for identification purposes as ‘State’s Exhibits Numbers Twelve’ ‘Thirteen’ and ‘Fourteen’, and ask if you can identify these? (exhibiting)
“A. (examining) Yes, I can.
“Q. And where did you first see these photographs?
“A. These photographs were inside a photo album that was inside the blue Corvette.
“Q. And did you remove the entire photo album, in addition—
“A. Yes.
“Q. —to these pictures?
“A. Yes, I did.
“Q. Okay. And I want to ask you if you would, to compare the blue Corvette that you seized and brought back to the Police Station, with the blue Corvette that’s in these pictures, and ask if they appear to you to be the same?
“A. They are the same Corvette.
“Q. I’ll ask you to look at the man who is in these photographs with the Corvette, and ask you if you can identify him?
“A. Yes, I can.
“Q. Who is that?
“A. This is Robert Bruce Clark.
“Q. Is Robert Bruce Clark in the courtroom here today?
“A. Yes, he is.
“Q. Would you point him out for the Record?
“A. He is the person seated to the left of Defense Counsel, in the light blue shirt, and, I believe, gray slacks.”

While neither of the witnesses stated the “magic words”, their testimony was sufficient to show that the photographs fairly and accurately depicted the object. See Fobbs v. State, 468 S.W.2d 392 (Tex.Crim.App.1971). Grounds of error numbers one through three are overruled.

Ground of error number four alleges the trial court committed error in the admission of State’s exhibit number 17. This exhibit was a portion of a written offense report. The subject of the written report surfaced as follows:

“Q. Detective Collins, did you prepare a report of this particular offense?
“A. Yes, sir.
“Q. Did you prepare only one report of this particular offense?
“A. Yes, sir.
“[DEFENSE COUNSEL]: May I have a moment, Your Honor?
“[PROSECUTOR]: (tendering)
“THE COURT: Yes, sir.
“[DEFENSE COUNSEL]: (examining)
“Q. Detective Collins, I noticed — It’s probably nothing, but I noticed right off the bat, on your offense report, here, when you were writing this report, up until the part that you started describing Robert Clark taking something from the jacket—
“[DEFENSE COUNSEL]: May I show him the report?
“THE COURT: Yes, sir.
“Q. You typed all this business in single spaced? Okay?
“A. Yes, sir.
“Q. And, then, when you start talking about this stuff about Robert taking a can off of — off of his jacket, you skip a line, and you start double spacing.

Is there any particular reason for that?

“A. Yes, sir. That particular report is not typed by myself, per se. We have a system at the Port Arthur Police Department, called the ‘Code Four System’, and our reports are dictated on the machine, and the secretary types them. That day, the typewriter broke, and she went back and was typing it like that.
“Q. Oh, the typewriter broke. That’s why you decided right at that point to change typists."

Thereafter, the state tendered the exhibit in the following manner:

[564]*564(WHEREUPON, an offense report, tendered by counsel for the State of Texas, was marked for identification by the Reporter as “State’s Exhibit Number Seventeen”, and was returned to counsel for the State of Texas:)
“[PROSECUTOR]: I want to tender a piece of evidence, and [DEFENSE COUNSEL] mentioned he wants to object, so, I would like to take it up outside the presence of the jury, first of all.
“THE COURT: What is it?
“[PROSECUTOR]: It’s a copy of Page Two of Mr. Clark’s offense report—
“THE COURT: What?
“[PROSECUTOR]: Excuse me. Officer Collins’ offense report.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Barela, Joseph Lino
Court of Criminal Appeals of Texas, 2005
Barela v. State
180 S.W.3d 145 (Court of Criminal Appeals of Texas, 2005)
Joseph Lino Barela v. State
Court of Appeals of Texas, 2004
Valladares v. State
800 S.W.2d 274 (Court of Appeals of Texas, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
704 S.W.2d 557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-state-texapp-1986.