In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-12-00233-CR
GEORGE W. JACKSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. 2012-434,620, Honorable Jim Bob Darnell, Presiding
May 17, 2013
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, George W. Jackson, appeals his conviction for the offense of driving
while intoxicated, third or more offense,1 and resulting sentence of eight years
confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-
TDCJ). Appellant brings forth a single issue contending that the trial court erred in
admitting into evidence State’s Exhibits 6 and 6A. We affirm.
1 See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2012). Factual and Procedural Background
Initially, we note, appellant is not challenging the sufficiency of the evidence;
therefore, we will only address so much of the evidence as is necessary for disposition
of the issue before the Court. Appellant was arrested for driving while intoxicated and,
at some point after his arrest, it became apparent to the police that appellant had been
previously convicted of driving while intoxicated. As a result of appellant’s previous
convictions, the State ultimately indicted appellant for the offense of driving while
intoxicated, third or more offense. The indictment, in addition to alleging the elements
of driving while intoxicated, alleged two prior driving while intoxicated convictions for
jurisdictional purposes. These convictions were as follows: on April 5, 1994, in cause
number 93-3079 in the County Court of Ector County, Texas, and on April 10, 2003, in
cause number 2000-434,194 in the 140th District Court of Lubbock County, Texas.
At appellant’s trial on the indicted offense, the State attempted to prove that
appellant had previously been convicted of the listed driving while intoxicated offenses
through the admission of a series of exhibits. Specifically, the State offered State’s
Exhibit 6 to prove the 1994 Ector County conviction. The exhibit, as offered, reflects a
copy of a judgment granting probation in cause number 93-3079 for the offense of
driving while intoxicated to an individual named George Winton Jackson. Exhibit 6A is a
certificate from the County Clerk of Ector County stating that the foregoing is a true and
correct copy of the judgment granting probation (and other documents not involved
herein). However, the certification contains neither the seal of the County Clerk of Ector
County, Texas, nor the signature of the Deputy Clerk identified below the signature line.
The State also offered State’s Exhibit 7, the judgment in cause number 2000-434,194
2 from Lubbock County. This judgment placed George W. Jackson on probation for the
offense of driving while intoxicated, third or more, on March 16, 2001. State’s Exhibit 8
was offered and, through this exhibit, the State proved that George W. Jackson’s
probation previously granted in cause number 2000-434,194 was revoked on April 16,
2003. Finally, the State introduced State’s Exhibit 9, a fingerprint card for George W.
Jackson.
When State’s Exhibits 6 and 6A were offered into evidence, appellant’s trial
counsel objected to the introduction of the exhibits. The trial court overruled the
objection and the exhibits were admitted. Appellant did not object to the introduction of
State’s Exhibits 7, 8, or 9.
After hearing the evidence, the jury returned a verdict of guilty as to the indicted
offense of driving while intoxicated, third or more. Subsequently, the jury sentenced
appellant to confinement in the ID-TDCJ for a period of eight years. Appellant has
perfected his appeal and brings forth the single issue regarding the correctness of the
trial court’s ruling allowing State’s Exhibits 6 and 6A to be admitted. We will affirm.
Admission of State’s Exhibits 6 and 6A
Appellant’s contention can be summed up as an insistence that the certification
from the County Clerk of Ector County, Texas, was defective for two reasons. First, the
certification did not contain the seal of the County Clerk. Second, the certification did
not contain the signature of the Deputy County Clerk attesting to the efficacy of the
document.
3 Standard of Review
We review the trial court’s determination to admit evidence under an abuse of
discretion standard. See Tienda v. State, 358 S.W.3d 633, 638 (Tex.Crim.App. 2012).
If the trial court’s ruling as to the admissibility of the evidence is within the zone of
reasonable disagreement, we will not interfere. Id. (citing Montgomery v. State, 810
S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh’g)).
Analysis
Appellant is urging the Court to take a very narrow and legalistic approach to the
issue of authentication of the document offered as State’s Exhibit 6 and certified to by
State’s Exhibit 6A. Under this theory, the only way for the State to overcome the natural
hearsay nature of State’s Exhibit 6 is to invoke Rules 803(8)(A) and 1005 of the Rules
of Evidence. See TEX. R. EVID. 803(8)(A), 1005.2 Going forward with appellant’s
analysis, Rule 1005 requires that the recorded judgment be “certified as correct in
accordance with Rule 902.” See id. This, according to appellant, is where the exhibit
fails, as Rule 902(1) expressly requires that an admissible document must bear “a
signature purporting to be an attestation or execution.” See Rule 902(1). In the final
analysis, appellant’s position is very simple: no signature or seal on Exhibit 6A means
improper certification which, in turn, means that the attempted authentication under
Rule 902 fails and the exhibits are not admissible because they are hearsay.
2 Further reference to the Texas Rules of Evidence will be by reference to “Rule ____.”
4 The State counters by initially asking that the Court rule that the objection has not
been properly preserved. According to the State, appellant’s objection was a “shotgun”
or “omnibus” approach to the issue of admissibility that did not properly preserve the
complaint.3 Although the objection does continue on and contains some other alleged
infirmities, the objection clearly points the trial court to the issue of the authentication.
As such, we feel assured that the objection adequately apprised the trial court of the
nature of the objection such that the issue is preserved for appeal. See TEX. R. APP. P.
33.1(a)(1). Next, the State encourages the Court to find that appellant has waived the
issue by his failure to object to State’s Exhibit 7. State’s Exhibit 7, the judgment from
Lubbock County for the 2003 conviction for driving while intoxicated, third or more
offense, contained the information regarding the 1994 Ector County conviction that was
the subject of the documents offered as State’s Exhibits 6 and 6A. We decline to find
that appellant’s failure to object to State’s Exhibit 7 was a waiver of a known right. See
Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998) (en banc) (citing Johnson v.
Zerbst, 304 U.S.458, 464, 82 L.Ed. 1461, 58 S.Ct. 1019 (1938)).
However, appellant’s failure to object to State’s Exhibit 7 is terminal to his
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-12-00233-CR
GEORGE W. JACKSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. 2012-434,620, Honorable Jim Bob Darnell, Presiding
May 17, 2013
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, George W. Jackson, appeals his conviction for the offense of driving
while intoxicated, third or more offense,1 and resulting sentence of eight years
confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-
TDCJ). Appellant brings forth a single issue contending that the trial court erred in
admitting into evidence State’s Exhibits 6 and 6A. We affirm.
1 See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2012). Factual and Procedural Background
Initially, we note, appellant is not challenging the sufficiency of the evidence;
therefore, we will only address so much of the evidence as is necessary for disposition
of the issue before the Court. Appellant was arrested for driving while intoxicated and,
at some point after his arrest, it became apparent to the police that appellant had been
previously convicted of driving while intoxicated. As a result of appellant’s previous
convictions, the State ultimately indicted appellant for the offense of driving while
intoxicated, third or more offense. The indictment, in addition to alleging the elements
of driving while intoxicated, alleged two prior driving while intoxicated convictions for
jurisdictional purposes. These convictions were as follows: on April 5, 1994, in cause
number 93-3079 in the County Court of Ector County, Texas, and on April 10, 2003, in
cause number 2000-434,194 in the 140th District Court of Lubbock County, Texas.
At appellant’s trial on the indicted offense, the State attempted to prove that
appellant had previously been convicted of the listed driving while intoxicated offenses
through the admission of a series of exhibits. Specifically, the State offered State’s
Exhibit 6 to prove the 1994 Ector County conviction. The exhibit, as offered, reflects a
copy of a judgment granting probation in cause number 93-3079 for the offense of
driving while intoxicated to an individual named George Winton Jackson. Exhibit 6A is a
certificate from the County Clerk of Ector County stating that the foregoing is a true and
correct copy of the judgment granting probation (and other documents not involved
herein). However, the certification contains neither the seal of the County Clerk of Ector
County, Texas, nor the signature of the Deputy Clerk identified below the signature line.
The State also offered State’s Exhibit 7, the judgment in cause number 2000-434,194
2 from Lubbock County. This judgment placed George W. Jackson on probation for the
offense of driving while intoxicated, third or more, on March 16, 2001. State’s Exhibit 8
was offered and, through this exhibit, the State proved that George W. Jackson’s
probation previously granted in cause number 2000-434,194 was revoked on April 16,
2003. Finally, the State introduced State’s Exhibit 9, a fingerprint card for George W.
Jackson.
When State’s Exhibits 6 and 6A were offered into evidence, appellant’s trial
counsel objected to the introduction of the exhibits. The trial court overruled the
objection and the exhibits were admitted. Appellant did not object to the introduction of
State’s Exhibits 7, 8, or 9.
After hearing the evidence, the jury returned a verdict of guilty as to the indicted
offense of driving while intoxicated, third or more. Subsequently, the jury sentenced
appellant to confinement in the ID-TDCJ for a period of eight years. Appellant has
perfected his appeal and brings forth the single issue regarding the correctness of the
trial court’s ruling allowing State’s Exhibits 6 and 6A to be admitted. We will affirm.
Admission of State’s Exhibits 6 and 6A
Appellant’s contention can be summed up as an insistence that the certification
from the County Clerk of Ector County, Texas, was defective for two reasons. First, the
certification did not contain the seal of the County Clerk. Second, the certification did
not contain the signature of the Deputy County Clerk attesting to the efficacy of the
document.
3 Standard of Review
We review the trial court’s determination to admit evidence under an abuse of
discretion standard. See Tienda v. State, 358 S.W.3d 633, 638 (Tex.Crim.App. 2012).
If the trial court’s ruling as to the admissibility of the evidence is within the zone of
reasonable disagreement, we will not interfere. Id. (citing Montgomery v. State, 810
S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh’g)).
Analysis
Appellant is urging the Court to take a very narrow and legalistic approach to the
issue of authentication of the document offered as State’s Exhibit 6 and certified to by
State’s Exhibit 6A. Under this theory, the only way for the State to overcome the natural
hearsay nature of State’s Exhibit 6 is to invoke Rules 803(8)(A) and 1005 of the Rules
of Evidence. See TEX. R. EVID. 803(8)(A), 1005.2 Going forward with appellant’s
analysis, Rule 1005 requires that the recorded judgment be “certified as correct in
accordance with Rule 902.” See id. This, according to appellant, is where the exhibit
fails, as Rule 902(1) expressly requires that an admissible document must bear “a
signature purporting to be an attestation or execution.” See Rule 902(1). In the final
analysis, appellant’s position is very simple: no signature or seal on Exhibit 6A means
improper certification which, in turn, means that the attempted authentication under
Rule 902 fails and the exhibits are not admissible because they are hearsay.
2 Further reference to the Texas Rules of Evidence will be by reference to “Rule ____.”
4 The State counters by initially asking that the Court rule that the objection has not
been properly preserved. According to the State, appellant’s objection was a “shotgun”
or “omnibus” approach to the issue of admissibility that did not properly preserve the
complaint.3 Although the objection does continue on and contains some other alleged
infirmities, the objection clearly points the trial court to the issue of the authentication.
As such, we feel assured that the objection adequately apprised the trial court of the
nature of the objection such that the issue is preserved for appeal. See TEX. R. APP. P.
33.1(a)(1). Next, the State encourages the Court to find that appellant has waived the
issue by his failure to object to State’s Exhibit 7. State’s Exhibit 7, the judgment from
Lubbock County for the 2003 conviction for driving while intoxicated, third or more
offense, contained the information regarding the 1994 Ector County conviction that was
the subject of the documents offered as State’s Exhibits 6 and 6A. We decline to find
that appellant’s failure to object to State’s Exhibit 7 was a waiver of a known right. See
Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998) (en banc) (citing Johnson v.
Zerbst, 304 U.S.458, 464, 82 L.Ed. 1461, 58 S.Ct. 1019 (1938)).
However, appellant’s failure to object to State’s Exhibit 7 is terminal to his
request for reversal. State’s Exhibit 7 contained the very information the State was
attempting to use to prove that appellant had previously been convicted of the offense
of driving while intoxicated in Ector County, Texas, in 1994. The judgment that is
State’s Exhibit 7 reflects that George W. Jackson entered a plea of guilty to the offense
of driving while intoxicated, third or more, in cause number 2000-434,194. One of the
3 Trial counsel’s objection to State’s Exhibit 6 was, “Your Honor, . . . ., I object to it on the grounds that, one, [1] it’s immaterial and irrelevant; [2] that it’s hearsay; [3] that it’s not properly authenticated.”
5 prior convictions that appellant entered his plea toward, and that the trial court found
him guilty of, was cause number 93-3079 in Ector County, Texas.
In the final analysis, even if we assume that the trial court erred in admitting
State’s Exhibits 6 and 6A, which we do not find, we will not reverse appellant’s
conviction. Because of the admission of State’s Exhibit 7, the trial court’s admission of
State’s Exhibits 6 and 6A could not have harmed appellant. See id. (overruling an
objection to evidence will not result in reversal when other such evidence was received
without objection, either before or after the complained of ruling). We simply treat this
as a form of harm analysis which results in our holding that appellant could not have
been harmed by the admission of State’s Exhibits 6 and 6A. Accordingly, appellant’s
issue is overruled.
Conclusion
Having overruled appellant’s single issue, we affirm the judgment of the trial
court.
Mackey K. Hancock Justice
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