FERDINAND COOK, JR., Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 11, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01247-CR
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FERDINAND COOK, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 203rd District Court
Dallas County, Texas
Trial Court Cause No. F88-84124-LP
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O P I N I O N
Before Justices McClung, Lagarde and Ovard
Opinion By Justice McClung
        Ferdinand Cook appeals his jury conviction of burglary of a vehicle, and punishment was assessed at 26 years' confinement. Cook asserts that inadmissible hearsay was admitted, that there was insufficient evidence as to the third paragraph (enhancement) of the indictment, and that the court failed to define "final conviction" in the jury charge. We affirm the trial court's judgment.
        Officer Caldwell was on top of a parking garage with a pair of binoculars watching various paid parking lots, and there were two other officers in an unmarked vehicle patrolling the area. At approximately 9:20 a.m. on June 27, 1988, Officer Caldwell observed two black men, one of whom was Cook approach a white sedan in the parking lot at 900 Pacific, look around, walk to the rear of the vehicle, then back around to the front. Cook then pulled an object from his waistband, opened the driver's door and entered the vehicle. Officer Caldwell observed the other man looking around before he entered the vehicle on the passenger side. As soon as the men approached the car, Officer Caldwell radioed the surveillance unit. Officer Nevils one of the two in the unmarked car testified that he and Officer Harris received a radioed message from Officer Caldwell, and in response, drove up behind a white 1982 Sedan parked in the lot at 900 Pacific. There they observed two men, slumped down in the front seat. On approaching the vehicle they asked Cook and his accomplice who the vehicle belonged to. In response, both just shrugged their shoulders. The officers then arrested Cook and his accomplice. Officer Nevil testified that the engine of the vehicle was running when he approached it. There was no key in the ignition switch, and the ignition switch was still in the "off" position. A screwdriver and a piece of wire were found in the vehicle.
        The complainant testified that she and her husband own a white 1982 Oldsmobile Tornado. That on June 27, 1988, she had parked it in a parking lot at the corner of Pacific and Lamar, and locked the vehicle before she left the lot. When she returned to her vehicle, she found a note from Officer Harris stating her vehicle had been stolen and gave a number for her to call. The complainant could not start her vehicle with her key because the ignition was broken. She also stated that she did not give Cook or anyone else consent to enter her vehicle.
        Cook first contends that the court admitted hearsay as to the vehicle identification number. The testimony and objection occurred in the following manner:
        (BY PROSECUTOR)
 
        Q.    Officer Harris, I failed to ask you a question when you were testifying before. So I want to ask you now. During, as part of the arrest procedure, did you get the Vehicle Identification Number from this '82 Oldsmobile where you found these two men?
 
        A.    Yes, I did.
 
        Q.    And did you record that anywhere?
 
        A.    Probably on just my note pad.
 
        Q.    Did you later provide that information to another officer?
 
        A.    Yes, I did.
 
        Q.    And was that information included in the report on this case?
 
        A.    Yes, it was.
 
        Q.    Do you recall that Vehicle Identification Number offhand?
 
        A.    No, I don't remember it.
 
        Q.    Officer, I would like for you to take a minute and review your report and refresh your recollection. Tell me the VIN number on this particular vehicle.
 
        DEFENSE ATTORNEY: Your Honor, I object. Asking for a hearsay response. It's pure hearsay.
 
        THE COURT: Objection overruled.
 
        DEFENSE ATTORNEY: Note my exception.
 
        Q.    (By the prosecutor) What was the VIN number on that vehicle?
 
        A.    Okay. 1G3AZ57YOCE333356.
 
        Q.    Thank you, Officer Harris.
 
        PROSECUTOR: That's all I have, Judge.
 
        DEFENSE ATTORNEY: Mrs. Harris? Sir?
 
        THE COURT: You want to cross-examine?
 
        DEFENSE ATTORNEY: Yes, I do.
 
CROSS EXAMINATION
        DEFENSE ATTORNEY:
 
        Q.    Mrs. Harris, who prepared that report that you just read from?
 
        A.    Who called it in?
 
        Q.    No, who prepared the report you just read for the jury from?
 
        A.    I wrote the vehicle information down.
 
        Q.    I didn't ask you that, ma'am. Who wrote the report you read from?
        A.    A clerk typed it in.
 
        Q.    The fact is, you don't know who wrote the report?
 
        A.    It's not written down, the report's not written down.
 
        Q.    Did you write that document you just read from?
 
        A.    I wrote the VIN number.
 
        Q.    I didn't ask you that. Did you prepare the report you just read from?
 
        A.    Prepare it?
 
        Q.    Yes ma'am
 
        A.    What do you mean by prepare?
 
        Q.    Did you draft it?
 
        A.    No.
 
        DEFENSE ATTORNEY: Pass the witness.
 
        Cook contends that the writing from which Officer Harris read was hearsay as defined by Tex. R. Crim. Evid. 801, inadmissible pursuant to Tex. R. Crim. Evid. 802, and not one of the exceptions listed in Tex. R. Crim. Evid. 803. Cook is correct. The Officer's testimony does not fall within the above stated rules. However, the testimony is permissible pursuant to Tex. R. Crim. Evid. 611, which reads in pertinent part: "If a witness uses a writing to refresh his memory for the purpose of testifying, an adverse party is entitled to . . . cross-examine the witness thereon . . . . Here, Officer Harris recorded the VIN and related the information to another officer so that it could be included in the police report. "It is not necessary that the memorandum have been made by the witness so long as it refreshes his [her] memory." Johnson v. State, 478 S.W.2d 952, 953 (Tex. Crim. App. 1972); Leal v. State, 442 S.W.2d 736 (Tex. Crim. App. 1969). When Officer Harris testified that she could not remember the VIN, the prosecutor gave her an opportunity to refresh her memory with the police report. The officer then was able to testify to the correct VIN of the stolen vehicle, and Cook was permitted to cross-examine the witness about his testimony. Point of error one is overruled.
        Next, Cook complains that the evidence is insufficient to support a finding of true to enhancement paragraph of the indictment. Cook maintains that the judgment in Cause No. F81-05418-RI is not a valid judgment because it does not bear the signature of a judge nor does it purport to be a declaration of a judge.
        The Texas Court of Criminal Appeals has held on a number of occasions that the validity of a conviction is not affected by the failure of the trial judge to sign the judgment. Mulder v. State, 707 S.W.2d 908, 913 (Tex. Crim. App. 1986); Harrell v. State, 643 S.W.2d 686, 690 (Tex. Crim. App. 1982); Gutierrez v. State, 456 S.W.2d 84 (Tex. Crim. App. 1970). Therefore, we conclude the evidence is sufficient to support the jury's finding of true to third paragraph of the indictment. Point of error two is overruled.
        Finally, Cook claims that the trial court should have defined the term "final conviction" in its charge to the jury. Cook argues that without knowing what "final conviction" means, the jury cannot know what proof is necessary to constitute a verdict of true. This issue has been previously addressed by this Court wherein we held that whether or not a previous conviction is void is a question of law to be resolved by the court rather than the jury. Loftin v. State, 624 S.W.2d 351, 353 (Tex. App.--Dallas 1981, pet. ref'd). The jury is never the judge of the law in a criminal proceeding and it is error to allow the jury to resolve a legal question. Morehead v. State, 746 S.W.2d 830, 838 (Tex. App.--Dallas 1988, pet. granted), citing Myles v. State, 170 Tex. Crim. 479, 341 S.W.2d 913, 915 (1960). It would have been improper for this trial court to instruct the jury in a manner that would have required it to determine the validity of a final conviction, which is a matter of law. Loftin, 624 S.W.2d at 353; Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981).
        Also, we are mindful that the Court of Criminal Appeals has stated that the validity of a conviction is not affected by the failure of the trial judge to sign the judgment. Mulder v. State, 707 S.W.2d 908, 913 (Tex. Crim. App. 1986). Therefore, there was no issue as to the finality of any of Cook's prior convictions which were admitted into evidence. The trial court properly refused to include Cook's requested instruction in the jury charge. Point of error three is overruled.
        We affirm the judgment of the trial court.
        
 
                                                                                  PAT McCLUNG
                                                                                  JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
881247F.U05
 
 
File Date[12-11-89]
File Name[881247F]