ALBERT MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED Opinion filed October 6, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-00948-CR
............................
ALBERT MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F88-81937-RH
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O P I N I O N
Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Stewart
        Albert Martinez appeals his jury conviction for possession of a controlled substance. Punishment, enhanced by a prior conviction, was assessed at thirty-five years' confinement. In four points of error, appellant contends: (1) that the trial court erred in failing to properly conduct a hearing on appellant's motion to quash the jury panel based on the prosecution's systematic exclusion of blacks from the venire in violation of the sixth amendment, the due process clause of the fourteenth amendment, and article 35.261 of the Texas Code of Criminal Procedure; (2) that the identification testimony presented by the State was insufficient to support the admission into evidence of alleged prior felony and misdemeanor offenses; (3) that the trial court erred in admitting four penitentiary packets which were not properly authenticated; and (4) that the trial court erred in denying appellant's motion for mistrial based on improper jury argument. We overrule these points of error and affirm the judgment of the trial court.
        In his first point, appellant complains of the trial court's refusal to conduct a hearing on his motion to quash the jury panel based on the prosecution's systematic exclusion of blacks from the venire in violation of the sixth amendment, the due process clause of the fourteenth amendment, and article 35.261 of the Texas Code of Criminal Procedure. Appellant raised the issue pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), at the conclusion of voir dire examination before the jury panel was discharged or the seated jury was sworn. Appellant also had a pretrial Batson motion on file which challenged the prosecutor's peremptory strikes on fourteenth amendment equal protection grounds. In ruling on appellant's motion, the court took judicial notice that appellant was a Latin American male; that of ten peremptory strikes exercised by the State, one was used on a Latin American male and five were used on blacks; and that one black male was seated on the jury. The trial court refused to require the prosecutor to present racially neutral explanations for her peremptory strikes of the five black veniremen; he instructed the prosecutor to give an explanation for the striking of the Latin American venireman.
        Appellant argues that as a Latin American he had the right to challenge the State's peremptory strikes of black veniremen under Seubert v. State, 749 S.W.2d 585 (Tex. App. -- Houston [1st Dist] 1988, no pet.). The court in Seubert held that a white defendant has the right to challenge the State's peremptory strike of a black venireman on the grounds of a sixth amendment violation of the right to be judged by a jury representative of the entire community, Id. at 587, and on a violation of the due process clause of the fourteenth amendment. Id. However, appellant did not raise these grounds either before or during trial of this case. Consequently, he cannot raise these claims on appeal. TEX. R. APP. P. 52(a). Likewise, because appellant did not urge article 35.261 of the Texas Code of Criminal Procedure in the trial court as a ground for requiring the State to present neutral explanations for striking the black venire members, he cannot now argue that ground on appeal. Id.
        Appellant's pretrial motion and trial objections were made solely on the basis of Batson, 476 U.S. at 79, and the constitutional right to equal protection. Batson provides no remedy for a defendant who belongs to a different racial group from that of the struck venireman. Seubert, 749 S.W.2d at 588. Since appellant is a member of the white race, he was not denied equal protection under the mandates of Batson when black jurors were struck. Id. We overrule appellant's first point of error.
        In his third point, appellant contends that the trial court erred in admitting four penitentiary packets marked State's Exhibits 7, 8, 9, and 10 because they were not properly authenticated. The signature of the Wood County clerk was missing on the cross-exemplification page on each of these exhibits. Appellant first argues that without the county clerk's signature the documents are only certified copies and need a sponsoring witness for admission into evidence. Appellant further argues that because exhibit 10 has no seal from S.O. Woods, record clerk of the Texas Department of Corrections (TDC), it is not a certified document.
        Rule 901(a) of the Texas Rules of Criminal Evidence provides that authentication or identification is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Rule 901(b) lists examples that conform with the requirements of the rule. Example 7 reads: "(7) Public records and reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept."
        Copies of judgments, sentences, and commentaries are "authorized by law to be recorded or filed" at the TDC and are "in fact recorded or filed" in that public office. Rodasti v. State, 749 S.W.2d 161, 163 (Tex. App. -- Houston [1st Dist.] 1988, no pet.). The statement by S.O. Woods at the top of the cross-exemplification page of each exhibit constitutes evidence that the exhibits are "from the public office where items of this nature are kept." We hold that this evidence is sufficient authentication for admission of the penitentiary packets into evidence. TEX. R. CRIM. EVID. 901(a) and 901(b)(7). Thus, we need not address appellant's argument respecting the lack of a seal on exhibit 10 nor his argument that the court erred in admitting documents certified by the TDC record clerk instead of requiring certified copies from the district clerk of the county from which the records originated. We overrule appellant's third point of error.
        In his second point, appellant contends that the identification testimony presented by the State is insufficient to link him to the prior convictions contained in State's Exhibits 11, 12, 13, and 14. Max Chester, the State's identification witness, testified that he had brought jail cards on an individual named Albert Martinez and that the fingerprints on those cards "matched" appellant's prints taken in court that day. Appellant contends that, because the jail cards were not introduced into evidence, the State failed to prove that the jail cards were related to State's Exhibits 11 through 14 and thus failed to prove that the Albert Martinez named in those exhibits was the same Albert Martinez who is appellant in this case. Aldridge v. State, 732 S.W.2d 395, 397 (Tex. App. -- Dallas 1987, pet. ref'd).
        The State has the burden of proving that the person named in prior convictions is the same as the defendant in the case. Aldridge, 732 S.W.2d at 396; Elizalde v. State, 507 S.W.2d 749, 752 (Tex. Crim. App. 1974), rev'd on other grounds sub nom. Bullard v. State, 533 S.W.2d 812, 816 (Tex. Crim. App. 1976). The Texas Court of Criminal Appeals has approved several methods of proving a defendant's criminal record. They include: (1) testimony of a witness who personally knows defendant and the fact of his prior conviction and identifies him; (2) stipulation or judicial admission of the defendant that he has been so convicted; (3) introduction of certified copies of the judgment and sentence and record of the TDC or a county jail including fingerprints of the accused supported by expert testimony identifying them with known prints of defendant; and (4) comparison by the fact finder of a record of conviction which contains photographs and a detailed physical description of the named person with the appearance of the defendant present in court. Aldridge, 732 S.W.2d at 396; Daniel v. State, 585 S.W.2d 688, 690 (Tex. Crim. App. 1979), rev'd on other grounds, 684 S.W.2d 354 (Tex. Crim. App. 1983). These are not the exclusive methods of proving prior convictions. Littles v. State, 726 S.W.2d 26, 31 (Tex. Crim. App. 1987).
        At trial, the jail cards never were introduced into evidence for either record purposes or for the jury's consideration. No cause numbers from any of the prior convictions were read from the jail cards and linked to State's exhibits 11 through 14. No photographs or physical descriptions were included in the State's Exhibits to compare with appellant's physical appearance in court. Thus, appellant urges that the State failed to meet its burden to prove that he was the person named in the prior convictions.
        The State argues that this case is distinguishable from Aldridge where there was neither testimony nor physical evidence admitted to connect the defendant to the prior convictions, because there was testimony to link appellant to the jail cards and there was testimony that can be interpreted to link the jail cards to the prior convictions. The State argues that the following testimony of Deputy Chester served the same purpose as admitting the jail cards:
        Q: Okay. On State's Exhibits 11, 12, 13, and 14, did you compare the jail card fingerprints with Mr Martinez's fingerprints?
 
                A: Yes, I did.
 
                Q: And did they match?
 
        A: Yes. That was the one I explained to you a moment ago, I compared the right index finger of the jail card, and, yes, in my opinion were made by one and the same person.
 
        The State suggests that, because State's Exhibits 11 through 14 do not contain jail cards or fingerprints, the prosecutor's question should be interpreted to ask whether appellant's fingerprints matched the fingerprints on the jail cards which correspond by cause number with State's Exhibits 11, 12, 13, and 14. We disagree. We conclude that the prosecutor's question is vague, confusing, and clearly insufficient to establish that the person named in exhibits 11 through 14 was appellant. The trial court erred in admitting State's Exhibits 11 through 14.
        State's exhibit 11 was the judgment and sentence from the second paragraph of the indictment; the jury found this second paragraph not true. State's Exhibits 12, 13, and 14 dealt with three misdemeanor offenses -- theft, shoplifting, and unlawfully carrying a weapon -- occurring in 1986, 1976, and 1976. These exhibits were before the jury for consideration at punishment. Appellant argues that even though the jury found the second paragraph of the indictment untrue, exhibit 11 was also still before the jury for consideration. He contends that the erroneous admission of these exhibits contributed to the punishment assessed beyond a reasonable doubt, TEX. R. APP. P. 81(b)(2) (Vernon Supp. 1989), because the jury assessed thirty-five years when the range of punishment for a first degree felony, enhanced by one prior felony conviction, was five years to ninety-nine years or life with an optional $10,000 fine. TEX. PENAL CODE 12.42(b) (Vernon 1965).
        The State replies that State's Exhibits 7 through 10 contained convictions for three felony thefts, three felony burglaries, and two felony assaults to commit murder. The State argues that the admission of the relatively minor offenses in exhibits 11 through 14 cannot reasonably be said to have harmed appellant since eight prior felonies were also introduced. The State also notes that when the jury found the second paragraph of the indictment "not true," it may be assumed that the jury did not consider the corresponding conviction in exhibit 11 in assessing punishment, leaving erroneously before the court, at most, misdemeanor theft, shoplifting, and unlawfully carrying a weapon.
        We have held that exhibits 7 through 10, containing the eight prior felonies were properly admitted. In light of this evidence, we hold that the admission of State' Exhibits 11 through 14, beyond a reasonable doubt, made no contribution to the punishment assessed by the jury in this case. TEX. R. APP. P. 81(b)(2). We overrule appellant's second point.
        In his fourth point, appellant contends that the trial court erred in denying his motion for mistrial based on improper jury argument. He complains of the following argument during the punishment phase of the trial:
        And so, yes, I do hope that your decision affects this man for a long time because every year he's committing a new offense against citizens, like you and like me, he's committing offenses against us.
 
        And I would say that it's a reasonable deduction from the evidence that a lot of these burglaries and assaults to commit murder have to do with drugs, have to do with needing money to get more drugs.
 
        Appellant contends that this argument invited the jury to consider facts not in evidence; that three of his prior felonies were burglary offenses occurring in 1966 and 1970 and two were assault offenses occurring in 1967; that their remoteness in time should bar them from being linked to a present drug offense; and that no evidence was presented that these prior felonies were drug related.
        The State replies that the argument was a reasonable deduction from the evidence; that Appellant had a prior conviction for possession between 1966 and 1986; that the State proved twelve prior convictions between 1966 and 1982; and that it is a reasonable hypothesis that some of the offenses were motivated by the need to obtain money for drugs.
        Ordinarily, any injury from improper jury argument is obviated when the court instructs the jury to disregard the argument, unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonition. Whether the prosecutor's argument necessitates a reversal is to be determined on the basis of probable effect on the minds of the jurors under the facts of each case. Blansett v. State, 556 S.W.2d 322, 328 (Tex. Crim. App. 1977).
        Assuming that the argument was improper, we conclude that the prosecutor's remark was not so inflammatory that its prejudicial effect could not be removed by the trial court's instruction to disregard. Id. The trial court promptly sustained appellant's objection and instructed the jury. In doing so, it cured any possible error. Appellant's fourth point is overruled.
        The judgment is affirmed.
 
 
                                                          
                                                          ANNETTE STEWART
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00948.U05
 
 
 
 
File Date[10-07-89]
File Name[880948F]