JAMES KURT GREEN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed October 3, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00070-CR
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JAMES KURT GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F87-96584-TJ
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O P I N I O N
Before Justices Howell, Rowe, and Burnett
Opinion By Justice Howell
        James Kurt Green appeals his jury conviction for murder. The jury assessed punishment at life confinement. In four points of error, appellant complains that the trial court erred in (1) overruling appellant's objection to the prosecutor's argument, once during the guilt/innocence stage and once again during the punishment stage, which commented on the failure of the defendant to testify; (2) overruling appellant's objection to the admission of evidence in violation of rule 902(10) of the Texas Rules of Criminal Evidence; and (3) denying appellant's motion for mistrial, during the punishment stage, because the prosecutor argument once again commented on his failure to testify. For the reasons below, we overrule appellant's points of error and affirm the judgment of the trial court.
        Appellant was indicted for the murder of Larry John Fahnestock. The State based its case on the following evidence. While they were riding in a truck appellant told his girlfriend, a transsexual, that he had stolen the truck and killed a friend for it. Appellant told his girlfriend that this incident occurred in Dallas. Specifically, appellant told her that at the time of the incident he forced the individual to get on the floorboard of his truck, and he subsequently drove to a field. The subject was forced to exit the vehicle, at which point appellant shot him. Appellant also told his girlfriend that he had stolen various items of property from the murder victim. While in the Dallas County jail, appellant made certain statements to his cell-mate. Essentially, appellant told his cell-mate that he had seen an individual named "Larry" harass a young "pretty boy" in a local homosexual bar. Appellant stated that he and Larry left the bar in Larry's pickup truck and that he had shot Larry and left his body in a field. Appellant also told his cell-mate about the stolen property including the pickup. The State was able to prove that appellant was indeed in possession of the murder victim's property including the pickup.
        In his first point of error, appellant contends that the prosecutor impermissibly commented on the failure of the defendant to testify in the following argument:
        [PROSECUTOR:]        You know from the testimony of N ____ that he threw away, the defendant threw away some personal papers or some papers that she assumed were personal papers. That fits. You know that the complaining witness's wallet was supposedly stolen by the defendant. There was no damage inside the pickup truck, no blood.
 
                Well, no one expected that to be because from everything that was testified to, the implication is that it happened out in that field. That's where the murder occurred. He told N ____ he held a gun on this guy down in the floorboard of his car, that Larry (sic) was on the floorboard of the pickup truck, he held the gun on him. There's no evidence to the contrary of that and you know, if P _______________________--
 
        [DEFENSE COUNSEL]: Excuse me, Judge, I will object to that last statement as a comment on the defendant's failure to testify.
 
        THE COURT: Overruled.
        A prosecutor's comment on a defendant's failure to testify offends both our state and federal constitutions. Livingston v. State, 739 S.W.2d 311, 337 (Tex. Crim. App. 1987), cert. denied, 108 S. Ct. 2858 (1988). For a statement to constitute a comment on the failure to testify, the language of such a statement must be either manifestly intended or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. Id.
        After reviewing the prosecutor's argument, we cannot say that the prosecutor's comments were "manifestly intended as a comment on appellant's failure to testify or that the jury would have 'naturally and necessarily' taken them to be such." Nickens v. State, 604 S.W.2d 101, 102-03 (Tex. Crim. App. 1980). We hold that the prosecutor's comments were focused primarily on the consistency of the confessions as they were told to appellant's cell-mate and girlfriend. Although appellant claims that this in fact alluded to his failure to testify, it is not sufficient that the language might be construed as an implicit or indirect allusion as to defendant's failure to testify. Livingston, 739 S.W.2d at 338. We overrule appellant's first point of error.
        Likewise, in point of error three, appellant claims that during the punishment stage, the prosecutor again commented on appellant's failure to testify and that the trial court erred in overruling his objection. During closing argument in the punishment stage, the prosecutor made the following statement: "You have no evidence from the conversations that took place about killing that there was any remorse or regret." Appellant asserts that the foregoing statement was a comment on his failure to testify during the punishment stage. Appellant cites Dickens v. State, 685 S.W.2d 320 (Tex. Crim. App. 1984), as authority. In Dickens, the prosecutor argued that the jury had not seen any remorseful or shameful feelings expressed by the defendant. Dickens, 685 S.W.2d at 324. This is clearly distinguishable from the present case. In this case the prosecutor simply argued that during the conversations between appellant and his cell-mate and girlfriend, appellant expressed no remorse or regret. We conclude that the prosecutor made no mention of defendant's failure to testify because of a nonremorseful or nonshameful state. Consequently, we overrule appellant's third point of error.
        In his fourth point of error, appellant contends that the trial court erred in denying appellant's motion for mistrial because, in another instance, the argument by the State was a comment on the failure of the defendant to testify and was so inflammatory and prejudicial that the instruction to disregard could not cure the harm. In the objected-to argument, the prosecutor stated: "There was not one iota of evidence or any reasonable deduction that [the jury] could make from that evidence that indicated that [appellant] was capable of being rehabilitated." Appellant then objected to the argument being a comment on his failure to testify. The trial court sustained the objection, and the jury was instructed to disregard. Appellant's motion for a mistrial was denied. Applying the aforementioned authority on failure to testify to this situation, we hold that the prosecutor did not comment on appellant's failure to testify, but instead spoke of rehabilitation. The desire, potential, and ability of a person to rehabilitate himself can be objectively assessed, and testimony on this subject does not have to come from the defendant alone. Davis v. State, 670 S.W.2d 255, 257 (Tex. Crim. App. 1984). We also conclude that the prosecutor was not manifestly intending to comment or necessarily commenting on the accused's failure to testify. See Davis, 670 S.W.2d at 257. We overrule appellant's fourth point of error.
        In his second point of error, appellant asserts that the trial court erred in overruling his objection to the admission of evidence because of the State's failure to comply with rule 902(10) of the Texas Rules of Criminal Evidence, thus depriving appellant of a fair trial. Before trial, a brief hearing was held concerning certain preliminary matters including the admissibility of State's exhibits fourteen and sixteen. State's exhibit number fourteen was an affidavit purported to be from a records custodian concerning certain medical records of Larry Fahnestock. State's exhibit number sixteen consisted of x-ray records of the murder victim and was referred to in the affidavit in State's exhibit number fourteen. These records were subsequently used to identify the body of the murder victim. Prior to the exhibits' admission, appellant timely and specifically called the attention of the trial court to the lack of authentication of these exhibits because they had not been filed with the papers of this cause as required by Rule 902(10). The State's response was that, since this case was a reindictment of the same cause, the documents were on file in a separate court jacket. The trial court ruled that its policy was to automatically allow a transfer from one jacket to a successor jacket in the reindicted case where the material had been previously filed. However, appellant argues that the trial court's policy cannot change the mandatory provisions of rule 902(10) which states that the records must be on file at least fourteen days prior to the day upon which the trial of the said cause number commences.
        Rule 902(10) creates four requirements for self-authentication of business records. It reads as follows:
         (10) Business records accompanied by     affidavit:
 
            (a) Records or photo copies; admissibility; affidavit; filing. Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection or copying. The expenses of copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who file the records and serve notice of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule 21a, Texas Rules of Civil Procedure, fourteen days prior to commencement of trial in said cause.
        The record shows that an expert was called to testify in person at the trial concerning the use of dental records in this case. The record reveals that the expert had special training in skeletal material. She was recognized as an expert in the field of forensic pathology by the courts in Dallas County.
        The record clearly establishes the expert as qualified to offer her opinion as to how she came to conclude the identity of the skeletal remains. Irrespective of Rule 902(10), the rule is that evidence which would otherwise be inadmissible is proven by some other testimony which is not objected to, no reversible error is shown. Mutscher v. State, 514 S.W.2d 905, 922 (Tex. Crim. App. 1974). Thus error, if any, in the admission of these exhibits was harmless since the expert's testimony that she made her identification of the skeletal remains of the deceased by referring to dental records was nevertheless admissible. Id.
        We overrule appellant's second point of error and we affirm the judgment of the trial court.
 
 
 
                                                          
                                                          CHARLES BEN HOWELL
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
880070F.U05
 
 
File Date[10-02-89]
File Name[880070F]