Handspur v. State

792 S.W.2d 239, 1990 WL 102917

• Court: Court of Appeals of Texas
• Decided: October 3, 1990
• Docket: 05-89-00082-CR
• Status: Published

Opinions

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 dis-positive 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 ease 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.

2 . The Houston Court originally held that such evidence was admissible under rules 901 and 902 of the Texas Rules of Criminal Evidence. Rodasti v. State, 749 S.W.2d 161, 163 (Tex.App.—Houston [1st Dist.] 1988) (RodastiI) (remanded for reconsideration in light of Dingler v. State, 768 S.W.2d 305 (Tex.Crim.App.1989)). This Court, in Reed I, interpreted this remand to indicate that such evidence was not admissible under rules 901 and 902 because that was the reasoning and conclusion in Dingier.

3 . After issuance of the opinion in Reed I, the Houston Court of Appeals came out with its "reconsidered” opinion in Rodasti v. State, 790 S.W.2d 379 (Tex.App.-Houston [1st Dist.] 1990) (Rodasti III), also following Dingier. In adopting Reed I, the Court of Criminal Appeals made no mention of the inconsistency between Ro-dasti II, which allowed the pen packet but ex-eluded uncertified evidence and Reed I, which excluded the entire pen packet.

4 . The majority conclusion is so only because we, as an intermediate court, are bound to follow the dictate of the Court of Criminal Appeals as it applies to the facts of this case.