Johnnie Walker v. State

• Court: Court of Appeals of Texas
• Decided: February 5, 1992
• Docket: 03-90-00269-CR
• Status: Published

Opinion

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



NO. 3-90-269-CR

JOHNNIE WALKER,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 83,075, HONORABLE JON N. WISSER, JUDGE PRESIDING

PER CURIAM

On July 30, 1986, appellant was convicted by a jury of forgery by possession. ⁽¹⁾ The jury assessed punishment, enhanced, at sixty years' confinement. The trial court sentenced appellant accordingly. On June 15, 1988, this court affirmed the conviction. On September 21, 1988, we granted appellant's motion for rehearing, withdrew our original opinion and judgment, affirmed the judgment of conviction as to guilt, reversed the judgment as to punishment, and remanded the cause for a new trial in accordance with 1987 Tex. Gen. Laws, ch. 179, § 1, at 1387 (Tex. Code Crim. Proc. Ann. art. 44.29(b), since amended). On September 14, 1990, a jury found the enhancement allegations true and assessed appellant's punishment at fifty years' confinement. The trial court rendered judgment accordingly. This appeal followed. We will affirm the judgment of conviction.

I. DISCUSSION & AUTHORITIES

Appellant brings one point of error asserting that the trial court overstepped its boundaries of impartiality when the judge: (1) advised the prosecutor how to cure the defects in the pen-packet evidence; and (2) called a recess to allow the prosecutor to cure the defects.

A. Standard of Review

The atmosphere essential to the preservation of a fair trial must be maintained at all costs. Estes v. Texas, 381 U.S. 532, 540 (1965); Taylor v. State, 420 S.W.2d 601, 607 (Tex. Crim. App. 1967). It is the duty of the trial court to conduct itself so as to ensure that the accused receives a fair trial. Tex. Code Crim. Proc. Ann. art. 2.03(b) (1977); see also Supreme Court of Texas, Code of Judicial Conduct, Canon 2, pt. A (1988). In an appeal of this nature, it is the fundamental purpose of this court to ascertain whether the convicted defendant received a fair trial in the court below. Bethany v. State, 814 S.W.2d 455, 456 (Tex. App. 1991, no pet). In making this determination, any indication of prejudice or opinion of guilt on the part of the trial judge requires close scrutiny of his actions. Id.

B. Background

The conduct complained of occurred when the State offered into evidence its exhibits 6, 7, 8, and 9. The exhibits are pen-packet evidence of appellant's prior convictions, offered for the purpose of enhancement. Appellant's trial counsel informed the court that he had extensive objections to the pen-packet evidence. Outside the presence of the jury, the court heard appellant's objections. Appellant asserts that in the course of this hearing: (1) the trial court's actions and rulings aided the State in proving up the prior convictions; (2) the trial court's rulings caused the prosecutor to realize that she needed to obtain further documentation in order to cure the defects in the pen packets; and (3) the trial court's action of delaying the trial gave the State sufficient time to remedy the defects which had been pointed out by defense counsel in his objections.

C. Point of Error Not Properly Raised

At the outset we note that a point of error must direct the attention of the appellate court to the error about which complaint is made. Tex. R. App. P. Ann. 74(d) (Supp. 1991). In his brief, appellant cites to an eighteen-page excerpt in the record to support his allegation of judicial impropriety. Appellant does not identify the specific rulings or actions alleged to constitute error. Mere reference to pages in the record does not sufficiently identify the complained of actions or rulings of the court and does not constitute a point of error. Thiel v. State, 676 S.W.2d 593, 595 (Tex. Crim. App. 1984).

D. Error Waived As To Trial Court's Improper Remarks

Nevertheless, we have reviewed the lengthy excerpt of the hearing. It is true that, outside the presence of the jury, the trial judge told the prosecutor how to cure defects in one of the pen packets. Appellant's trial counsel had objected to State's exhibit 8, which contained judgments and sentences for convictions in Travis County cause numbers 66,863 and 61,303. Appellant objected to the lack of certification of these documents. ⁽²⁾ The court responded: "These are Travis County. You can run right over there and get them signed right now by the clerk." Later, in response to a comment by appellant that "They [the documents] weren't certified the first time. How can they certify them now?", the court responded, "We just need to get them certified." (Emphasis added.)

Appellant failed to object to these comments or to any other comments made by the trial judge during the hearing. Nothing is presented for review. Tex. R. App. P. Ann. 52(a) (Supp. 1991).

E. No Showing of Harm As A Result of Trial Court's

Improper Remarks

If the trial court's remarks were improper, there is no evidence that the remarks harmed appellant. Tex. R. App. P. 81(b)(2) (Supp. 1991). The judge's statements were made outside the presence of the jury.

Additionally, appellant's attorney, not the trial court, alerted the prosecutor to the pen-packet certification defects. One reason for requiring a specific objection at trial is to allow opposing counsel an opportunity to remove the defect or supply additional testimony. Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). Consequently, a ruling sustaining appellant's Dingler objection to the State's exhibit 8 is not harmful simply because it caused the prosecutor to realize that she needed to obtain further documentation in order to cure the defects.

F. Trial Court's Decision To Recess Was Not Error

Appellant also asserts that the trial court overstepped the boundaries of impartiality when it recessed the trial so that the prosecutor could cure the defects in the pen- packets. After hearing appellant's objections to the pen-packet exhibits, the trial court informed the State it did not have to proffer its exhibits until the next day. The State withdrew its proffer of the exhibits. The trial court then refused to rule on their admissibility. There was no objection to the court's actions. The jury was then called back to the courtroom. The State put on four reputation witnesses. During a bench conference that followed, both sides indicated they had no further evidence to put on that day. In response to appellant's request that they finish the trial that day, the trial court responded that it was not possible to finish the trial that day because the charge would require several hours to prepare. The trial court elected to recess to begin preparing the charge and to postpone reconsideration of the pen-packet evidence until the next day. Appellant failed to object to the recess and error, if any, was waived. Tex. R. App. P. Ann. 52(a) (Supp. 1991).

Furthermore, that the State benefited from the court's decision to postpone further consideration of the pen-packet exhibits and to recess is of no moment. The power to regulate and control the order in which evidence is introduced is within the discretion of the trial court, as is the granting of a recess. Laws v. State, 549 S.W.2d 738, 741 (Tex. Crim. App. 1977), Williams v. State, 481 S.W.2d 119, 123 (Tex. Crim. App. 1972). We find no evidence in the record that the trial court abused its discretion. Appellant's point of error is overruled.

The judgment of conviction is affirmed.

[Before Justices Powers, Jones and Kidd]

Affirmed

Filed: February 5, 1992

[Do Not Publish]

1. ¹  Tex. Penal Code Ann. § 32.21(a)(1)(C) (1989).

2. ²  See Dingler v. State, 768 S.W.2d 305 (Tex. Crim. App. 1989) (pen-packet judgment certified by Texas Department of Corrections records clerk must also reflect that original copies of judgment received by TDC were certified by court clerk). Dingler has since been overruled in Reed v. State, 811 S.W.2d 582, 584 (Tex. Crim. App. 1991) (Texas Department of Criminal Justice, Institutional Division record clerk's certification of pen-packet copies of the judgment and sentence now constitutes proper authentication).