Hasley v. State

786 S.W.2d 733, 1989 Tex. App. LEXIS 3258, 1989 WL 201063

• Court: Court of Appeals of Texas
• Decided: November 1, 1989
• Docket: 09-89-076 CR
• Status: Published

Opinions

OPINION

BURGESS, Justice.

A jury convicted appellant of delivery of a controlled substance, found true the two enhancement allegations of the indictment, and assessed punishment at fifty years’ confinement in the Texas Department of Corrections. Appellant urges three points of error.

Appellant’s first point alleges error in admitting an audio tape of the alleged drug transaction. Appellant argues the tape was not properly authenticated.

Identification of a voice based upon hearing the voice at any time under circumstances connecting it with the alleged speaker meets the requirement of authentication or identification sufficient to support a finding that the matter in question is what its proponent claims as a condition precedent to admissibility. TEX.R.CRIM.EVID. 901(b)(5).

A police officer testified that appellant approached his vehicle, negotiated a sale and then delivered the controlled substance. The officer further testified he had a minicassette recorder in his car and recorded the entire transaction. He identified the cassette the one containing the audio recording of the offense, stated it was a true and correct recording of the entire transaction, and identified all of the voices in the transaction, including appellant’s.¹ The officer made an in-court identification of appellant as the individual who committed the offense and as the speaker on the audio tape. He identified the voice on the tape recording as appellant’s based on hearing appellant's voice during the offense and seeing appellant as he actually spoke. The officer’s testimony establishes the authenticity of the tape. The trial judge did not abuse his discretion in admitting the audio recording into evidence. Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977). Appellant’s first point of error is overruled.

Appellant’s second point of error urges the court erred in admitting a copy of a judgment regarding a prior conviction because the copy was not a true and correct copy of the original judgment and was therefore not entitled to be admitted as an exception to hearsay. The state tendered a “pen packet” certified by the Texas Department of Corrections’ custodian of records as true and correct copies of originals on file with the Texas Department of Corrections. The judgment in the “pen packet” was a certified copy from the office of the district clerk of the county in which the conviction was obtained. At trial, appellant brought to the court’s attention a second copy of a judgment purporting to be in the same cause number but bearing a different date and sentencing appellant to a longer term. It was obviously a different document from that tendered by the state. Appellant’s document was a copy which bore a filemark of the district clerk’s office, but which was not otherwise authenticated. It was offered without objection for the stated limited purpose of the objection to the introduction of the “pen packet”, but was never admitted into evidence. Appellant argues the judgment tendered by the state was inadmissible because it was not a true and correct copy. However, appellant does not argue the certification of the “pen packet” was defective. Nor does appellant attack the existence of the conviction. In fact, appellant pleaded “true” to this conviction and testified he was convicted of that offense in the year, court, and cause number stated in the judgment. This speaks to the weight of the evidence and not to its admissibility. Robinson v. State, 739 S.W.2d 795 (Tex.Crim.App.1987). As this same conviction was admitted by appellant on direct testimony, error, if any, is waived. Ricondo v. State, 657 S.W.2d 439 (Tex.App.—San Antonio 1983, no pet.). Although appellant does not contend the actual sentence was different from that stated in the judgment viewed by the jury, any error in giving the jury the impression appellant’s previous conviction was for twelve years, as stated in the judgment offered by the state, instead of twenty, as stated in the document produced by appellant, would beyond a reasonable doubt make no contribution to the punishment. TEX.R.APP.P. 81(b)(2). Appellant’s second point of error is overruled.

The final point of error urges the evidence was insufficient to support the conviction. Appellant’s sole complaint under this point is the sufficiency of the identification of appellant. The police officer made a positive in-court identification of appellant as the person who committed the offense. Appellant contested the reliability of the identification by developing testimony it was dark at the time of the offense, the officer initially thought appellant was a different person, and the officer was shown a single photograph of appellant three days after the offense. Viewing the evidence in the light most favorable to the jury’s verdict, it is clear a rational trier of the facts could have found all of the elements of the offense beyond a reasonable doubt. Marroquin v. State, 746 S.W.2d 747 (Tex.Crim.App.1988). Appellant’s third point of error is overruled and the judgment affirmed.

AFFIRMED.

1 . The officer testified the tape contained unrelated offenses by other individuals. Only the portion of the tape containing the offense for which appellant was tried was offered and admitted into evidence.