Rodasti v. State

790 S.W.2d 379, 1990 Tex. App. LEXIS 1122, 1990 WL 27038

• Court: Court of Appeals of Texas
• Decided: May 17, 1990
• Docket: 01-87-00785-CR
• Status: Published

Opinions

OPINION

DUGGAN, Justice.

The Court of Criminal Appeals has remanded Rodasti v. State, 749 S.W.2d 161 (Tex.App.— Houston [1st Dist.] 1988) (Ro-dasti I), remanded per curiam, Rodasti v. State, 786 S.W.2d 294 (Tex.Crim.App.1989) (Rodasti II), to us for further consideration of appellant’s points of error in light of Dingler v. State, 768 S.W.2d 305 (Tex.Crim.App.1989). We withdraw our prior opinion in Rodasti I, and substitute the following one. We affirm in part, reverse in part, and remand for another punishment hearing.

A jury found appellant guilty of aggravated sexual assault with the use of a deadly weapon. After finding two enhancement paragraphs to be true, it assessed punishment at life imprisonment. Appellant asserts two points of error.

Appellant’s first point of error asserts that the trial court improperly admitted State’s exhibit 6, a pen packet, as a self-authenticated document under Tex.R. Crim.Evid. 902.

State’s exhibit 6 is a Texas Department of Corrections (TDC) pen packet that contains copies of a judgment and sentence showing appellant’s prior conviction as alleged in enhancement paragraph one of the indictment. The copies of the judgment and sentence are certified by TDC’s custodian of records as being true and correct copies of the contents of TDC’s files, and the adequacy of this certification is not at issue here.

Appellant argues the copies of the judgment and sentence in State’s exhibit 6 were improperly admitted as self-authenticated documents, because they do not bear the certificate of the district clerk of the court where appellant’s previous conviction arose. In our prior opinion, we held that the copies of the judgment and sentence in State’s exhibit 6 were self-authenticated and admissible, even though the district clerk’s certification did not appear on them. Appellant filed a petition for discretionary review with the Court of Criminal Appeals, which remanded the case to this Court to further consider appellant’s points of error in light of Dingler. Rodasti II, 786 S.W.2d 294 at 295.

The Court of Criminal Appeals’ decision in Dingier supports the proposition that the copies of the judgment and sentence in State’s exhibit 6 had to reflect that the “original” copies received by the TDC were certified by the district clerk. Dingler, 768 S.W.2d at 306. Here, no such certification appears on the copies of the judgment and sentence in State’s exhibit 6. Therefore, we reverse the jury’s finding that the allegations in enhancement paragraph one are true, and remand for another punishment hearing.

In his second point of error, appellant argues his conviction is void because the visiting judge lacked authority to preside over the trial. We overrule this point of error. Appellant failed to assert this complaint in the trial court, and therefore failed to preserve the error on appeal. See Stephenson v. State, 500 S.W.2d 855, 857 (Tex.Crim.App.1973).

We affirm appellant’s conviction, and remand for another punishment hearing.