JERRY DOUGLAS HYDE,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01284-CR
NO. 05-88-01285-CR
JERRY DOUGLAS HYDE,FROM A DISTRICT COURT
 
                APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
                APPELLEE.OF COLLIN COUNTY, TEXAS
 
 
BEFORE JUSTICES STEWART, ROWE AND CARVER FN:1
OPINION PER CURIAM
MAY 4, 1989
        Jerry Douglas Hyde appeals his convictions for aggravated robbery. Punishment in each case, enhanced by a prior conviction, was assessed at seventy-five years' confinement.
        Appellant's attorney has filed a brief in which he has concluded that the appeals are wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no meritorious grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Counsel has raised three arguable points of error, claiming that: (1) the trial court erred in admitting into evidence a "pen packet", when there was no evidence to connect appellant to the packet; (2) the trial court erred in admitting into evidence records of appellant's prior convictions in the State of Tennessee, when the records were hearsay; and (3) the trial court erred in admitting into evidence a pen packet containing evidence of extraneous offenses. In addition, appellant has filed a pro se brief in which he raises three points of error, claiming that: (1) the trial court erred in allowing jury argument from the State concerning evidence not presented by appellant; (2) the State improperly impeached a defense witness with questions concerning prior convictions; and (3) the evidence is insufficient to support his convictions. We overrule all points of error and affirm the judgments of the trial court.
ADMISSION OF EVIDENCE OF PRIOR TEXAS CONVICTION
        We will address appellant's first and third points of error together, since we find they are interrelated. In counsel's first arguable point of error, he claims that the trial court erred in admitting into evidence State's Exhibit BB, a judgment showing that appellant had been convicted of aggravated sexual assault prior to the commission of these offenses. In appellant's third point of error, he claims that the trial court erred in admitting into evidence State's Exhibit DD, because the exhibit contained evidence of the extraneous offense and case number of the judgment in Exhibit BB.
        Courts of this State have approved several different means to prove the accused was the same person previously convicted when attempting to prove prior convictions for purposes of enhancement. They include: (1) testimony of a witness who identifies the accused as the same person previously convicted; (2) certified copies of the judgment and sentence and records of either the Texas Department of Corrections or a county jail including fingerprints of the accused, supported by expert testimony identifying them as identical with known prints of the accused; and (3) stipulation or judicial admission of the accused. Littles v. State, 726 S.W.2d 26, 31 (Tex. Crim. App. 1984). However, these methods are not exclusive. 726 S.W.2d at 32.                  In the present cause, the fingerprint records contained in Exhibit DD were connected by expert testimony to appellant's fingerprints, contained in State's Exhibit A. The only evidence, however, connecting Exhibit DD to the judgment in Exhibit BB was the judgment's cause number which appeared on the cards in Exhibit DD. Because the exhibits were introduced together, we surmise that the fingerprint cards in Exhibit DD most likely came from the pen packet covering appellant's conviction for the offense described in Exhibit BB. However, no probative evidence actually connects these fingerprint cards in Exhibit DD with the judgment in Exhibit BB. Consequently, we conclude that the trial court erred in admitting into evidence Exhibit BB.
        In addition, we find that the evidence supporting the admission of Exhibit DD suffered from the same lack of proof. No evidence showed that the offense listed on the fingerprint cards in Exhibit DD was related in any way to the cards. Based on the record before us, we conclude that the admission into evidence of Exhibit DD was error, since the notation on the fingerprint cards constituted evidence of an extraneous offense.
        The judgment in Exhibit BB was only one of twelve introduced at the punishment phase of trial. The other eleven, contained in State's Exhibit CC, included two which were used by the State for enhancement purposes. Exhibit BB was not used for enhancement, but as evidence of appellant's prior criminal record. TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a) (Vernon Supp. 1989). As a result, admission of Exhibit BB did not result in a mandatory increase of the range of punishment for the instant offenses. TEX. PENAL CODE ANN. § 12.42 (Vernon Supp. 1989). Further, the proper admission of evidence of eleven prior convictions vitiated any potential harm from the improper admission of Exhibits BB and DD. We conclude that the admission of Exhibits BB and DD was harmless. Appellant's first and third arguable points of error are overruled.
INTRODUCTION OF TENNESSEE PEN PACKET
 
        In appellant's second arguable point of error, he claims that the trial court erred in admitting into evidence State's Exhibit CC, a pen packet containing certified copies of eleven separate judgments of conviction from the State of Tennessee, together with certified copies of appellant's fingerprints and jail photographs. The record reflects that the State originally attempted to offer the pen packet as State's Exhibit C. At that time, the exhibit contained several pages with references to extraneous offenses. The court sustained appellant's objections and told the State that in order to introduce the documents into evidence, it would have to excise the offending material. The State complied with the trial court's directive, but instead of reintroducing the originals as excised, reintroduced photocopies of the documents as Exhibit CC. Appellant argues that since the State used photocopies of the documents contained in the original exhibit, and the photocopies did not have a separate certification as to their authenticity, the documents were not properly authenticated under rule 901(b) of the Texas Rules of Criminal Evidence, and thus constituted inadmissible hearsay.
        Under rules 902(1) and 902(4) of the Texas Rules of Criminal Evidence, domestic public documents under seal and certified copies of public records are self-proving. See Rodasti v. State, 749 S.W.2d 161, 163 (Tex. App.-- Houston [1st Dist.] 1988, no pet.). We are aware of no requirement that the original certification be used; in fact, a duplicate of a writing is admissible to the same extent as an original unless a question is raised as to the authenticity of the original. Acosta v. State, 752 S.W.2d 706, 709 (Tex. App.--Corpus Christi 1988, pet. ref'd.); TEX. R. CRIM. EVID. 1003.
        In the present cause, the documents challenged contain a certification. Although the documents and the certification are photocopies of those originally offered into evidence, the trial court had the original certification before it for comparison to the photocopy. In addition, no question was raised by appellant as to the authenticity of the original certification, or as to the authenticity of the photocopies. As a result, we conclude that the trial court did not commit error in admitting into evidence State's Exhibit CC. Appellant's second arguable point of error is overruled.
APPELLANT'S PRO SE POINTS OF ERROR
        Appellant argues in his first pro se point of error that the State committed reversible error in its closing argument. The proper scope of argument is: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response to argument of opposing counsel; and (4) pleas for law enforcement. Compton v. State, 607 S.W.2d 246, 253 (Tex. Crim. App.) (on rehearing), cert. denied, 450 U.S. 997 (1980); Alejandro v. State, 493 S.W.2d 230, 231-232 (Tex. Crim. App. 1973). Counsel must be given wide latitude in drawing inferences from the evidence so long as the inferences are reasonable, fair, legitimate, and offered in good faith. Vaughn v. State, 607 S.W.2d 914, 922-923 (Tex. Crim. App. [Panel Op.] 1980).
        Appellant claims that the State erred in making the following argument:
            Well, ladies and gentlemen, the defendant does not have a burden of proof, but they have an opportunity to bring you anything that can be termed evidence to demonstrate to you that person is innocent, if they want to. And there is no witness here to explain why it is that he was suddenly -- when evidence showed he always walked -was in a Mercury Topaz, or what possible connection he could have had with that Mercury Topaz. He could have done it. He could have brought you any kind of evidence at all that shows he owned that car three years ago. That must be...
Appellant objected at this point; his objection was overruled. The State continued:
            He owned the car three years ago. That's a three year old print or that is where it came from. There could have been something from Mr. Wafer or some other person to explain why that was you should expect his print on that car.
        At closing argument, appellant had argued that appellant's handprint, found on the car taken during the robbery, could have been put there at any time. The record further reflects that Lee Harvey Wafer, a friend of appellant's, testified. He said that he and appellant never travelled in an automobile, and that he had never seen appellant in a grey Mercury Topaz.
        The State has the right to comment on the defendant's failure to call competent and material witnesses, and the argument may be accompanied by an inference that the absent testimony would have been material and harmful to the defendant's position. Kerns v. State, 550 S.W.2d 91, 96 (Tex. Crim. App. 1977); Hill v. State, 672 S.W.2d 302, 304 (Tex. App.--Dallas 1984, no pet.). If the argument of the State may be reasonably construed as referring to appellant's failure to produce testimony other than his own, the argument is not improper. Nowlin v. State, 507 S.W.2d 534, 536 (Tex. Crim. App. 1974).
        In the present cause, the argument of the State, taken as a whole, merely responded to appellant's argument that his handprint, found on the automobile he took in the robbery, could have been put there at any time. Rather than comment on appellant's failure to testify, the argument pointed out that Mr. Wafer, a witness for appellant, did not give a plausible explanation for the handprint on the car. As a result, we conclude that the trial court did not err in allowing the argument of the State. Appellant's first pro se point of error is overruled.        
        In appellant's second point of error, he complains that the prosecutor committed reversible error by asking Mr. Wafer, a defense witness, whether he had previously been convicted of a felony or a misdemeanor involving moral turpitude. The record reflects that the prosecutor asked the following question and received the following answer:
    Q: Where do you currently reside?
 
        A: At the county jail.
No objection was made to this question. Later, the State asked:
 
    Q: Have you ever before been previously convicted of a known offense for a misdemeanor offense involving moral turpitude? [Appellant's objection overruled]
 
    A. I never been convicted of nothing.
        As to the first question asked by the State, no objection was lodged. Failure to timely object to the introduction of evidence waives any claim of error. Miller v. State, 742 S.W.2d 382, 391 (Tex. Crim. App. 1987); TEX. R. APP. P. 52(a). Since appellant failed to object, he has presented nothing to this Court to review.
        In addition, we do not find the second question by the State to constitute error. A witness may be impeached by evidence that he has been convicted of a felony or other crime involving moral turpitude, if the probative value of the evidence outweighs its prejudicial effect. Prescott v. State, 744 S.W.2d 128, 130 (Tex. Crim. App. 1988); TEX. R. CRIM. EVID. 609(a). Proof of such a conviction may be elicited by questions designed to secure an admission on the part of the witness. Kirvin v. State, 575 S.W.2d 301, 303 (Tex. Crim. App. [Panel Op.] 1978).
        In the present cause, the State was entitled to inquire into whether or not the witness had been convicted. As a result, we see no error in the trial court overruling appellant's objection. Appellant's second pro se point of error is overruled.
        In appellant's third pro se point of error, he claims that there is "no evidence" to support his convictions. Appellant differentiates his claim from a simple challenge to the sufficiency of the evidence. Cases in which the Court of Criminal Appeals has dealt in an appellate context with claims of "no evidence" have generally arisen in the context of motions for rehearing, after the appellant did not raise sufficiency of the evidence in his brief on original submission. See Gonzales v. State, 588 S.W.2d 574 (Tex. Crim. App. [Panel Op.] 1979); Scott v. State, 534 S.W.2d 711 (Tex. Crim. App. 1976). In these cases, the Court of Criminal Appeals has decided to review the sufficiency of the evidence "in the interests of justice". Similarly, in post-conviction applications for writ of habeas corpus, the Court of Criminal Appeals has reviewed claims of "no evidence" as an exception to the general rule that sufficiency of the evidence may not be raised on collateral attack. Ex parte Quirke, 710 S.W.2d 582, 585 (Tex. Crim. App. 1986). In the present causes, on the other hand, appellant is raising his point on original submission of the case. Since the "no evidence" rule in appellate cases is an exception to the general rule barring presentation of new issues on motion for rehearing, we conclude that appellant's point is most properly addressed as a challenge to the sufficiency of the evidence.
        In evaluating the sufficiency of the evidence, this Court's inquiry is limited to determining whether, examining the evidence in the light most favorable to the verdict, any rational trier of fact could have found all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sutherlin v. State, 682 S.W.2d 546, 548-549 (Tex. Crim. App. 1984). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985).
        Utilizing this standard, we will evaluate the evidence. The evidence introduced at trial discloses that on June 15, 1987, appellant robbed two Plano convenience stores, a Gulf Majik Market and the East Side Drive In. Both complainants identified appellant as the person who committed the robberies. They testified that appellant had displayed a handgun in the course of the respective robberies and that they had been placed in fear of their lives by appellant. After he robbed the East Side Drive In, appellant drove from the scene in a gray medium sized sedan. One witness identified the car as the body style of a Ford Tempo; the witness also said that a Mercury Topaz and Ford Tempo were very similar.
        Shortly after the robberies, the Plano police, based on a report of the robberies, chased a gray Mercury Topaz on U.S. 75 into Dallas County. The parties in the car managed to escape on foot. However, the police obtained fingerprints from the exterior of the car that matched appellant's prints.
        In his brief, appellant points to contradictions in testimony as rendering the evidence insufficient. However, the jury, as the trier of fact, must resolve conflicts in testimony; in carrying out this duty, it is entitled to believe or disbelieve the testimony of any witness. Benjamin v. State, 621 S.W.2d 617, 618 (Tex. Crim. App. [Panel Op.] 1981).
        Evaluating the evidence in the light most favorable to the verdict, we find that direct evidence showed that appellant robbed two convenience stores at gunpoint, and placed the complainant in each case in fear of serious bodily injury or death. A car chased by police shortly after the robberies both matched the description of the car used by the robber, and carried appellant's fingerprints. Accordingly, we conclude that the evidence was sufficient to support his convictions. Appellant's third pro se point of error is overruled.
        The judgments are affirmed.
                                                          PER CURIAM
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
 
 
FN:1 The Honorable Spencer Carver, Justice, Fifth Court of Appeals, retired, sitting by assignment.
File Date[01-02-89]
File Name[881284]