DAVID NICHOLAS GRINNELL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued July 3, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00405-CR
............................
DAVID NICHOLAS GRINNELL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F05-60674-IH
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OPINION
Before Chief Justice Thomas and Justices Lang-Miers and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant David Nicholas   See Footnote 2  Grinnell pleaded not guilty before a jury to possession with intent to deliver methamphetamine in an amount of 200 grams or more but less than 400 grams. After the jury found appellant guilty, the trial judge found the enhancement allegation true   See Footnote 3  and assessed appellant's punishment at fifty years' imprisonment. In his sole issue on appeal, appellant asserts the trial court erred by admitting and considering evidence of prior convictions alleged to be those of appellant when the documentation failed to contain photographs or fingerprints sufficient to prove appellant was the person previously convicted.   See Footnote 4 
        By way of a cross-point, the State asks that we modify the judgment to show appellant pleaded “not true” to the enhancement paragraph and that the trial court found the allegation “true.” We affirm the trial court's judgment as modified.
 
Background
 
        Officers conducting surveillance on a house for the sale of methamphetamine followed appellant when he left the house. After observing appellant commit some traffic violations, the officers stopped appellant and obtained his identification. When the officers began a computer search on appellant's name, he sped away from the scene. During his flight, appellant went through a red light and hit another car broadside, killing the driver of the car, Guermo Mendosa. Appellant continued to flee on foot. When officers searched appellant's vehicle, they found 338 grams of methamphetamine. After the jury found appellant guilty of possession with intent to deliver the methamphetamine, the case proceeded to punishment before the trial court judge.
        Appellant had a lengthy criminal record. During the punishment hearing, certain exhibits documenting prior convictions of a David Nicholas Grinnell were admitted into evidence.
        Dallas County Sheriff's deputy Richard Hamb testified as a fingerprint expert. He compared appellant's known fingerprints to fingerprints contained in the State's exhibits. State's exhibit no. 35, about which appellant does not complain on appeal, and which was admitted into evidence at trial, is a multi-page exhibit. It contains seven felony criminal judgments and a fingerprint card that matches appellant's known fingerprints. State's exhibit no. 37 reflects a prior misdemeanor conviction for driving while license suspended and was admitted into evidence without objection. Hamb, however, was not able to connect appellant's known fingerprints to the convictions reflected in State's exhibit nos. 36, 38, 39, and 40 because the exhibits either did not contain any fingerprints or contained fingerprints not sufficiently legible for identification. Notwithstanding Hamb's inability to successfully connect appellant to those exhibits, the trial judge admitted the exhibits into evidence, over defense objection, with the following clarification of his ruling:
 
        [Counsel], I'm going to admit them. It's in front of the Court. I understand [I] still have to consider them fairly, and I will, but I'm going to-if I do decide to consider them, I'll consider them in light of the weight I might want to give based on your objections. I want to see what connection the Court can make. Anything I cannot connect to this defendant, I obviously will disregard.
 
(Emphasis added.)
        After the challenged exhibits were admitted into evidence and the court heard further testimony , the judge said:
 
First of all, [appellant], I do find that the allegation or-allegation about the former conviction is true. I find that true.
 
 
 
        And just in the abundance of caution, [prosecutor], State's 36 and 38, one of those is a packet from Kaufman County. The other one is-I'll take that back. Let me see. These are the ones which I just-except for the name I can't really connect to the defendant, so I'm not going to weight them. One of them is out of Lamar County, appears. The other one's out of Kaufman. Name is similar, but I-one of these I don't think has a fingerprint at all. The other one has a very indistinct fingerprint. I really don't have any doubt it is the defendant. Abundance of caution, I'm not going to weight those at all. I do find all the other records are proved to my satisfaction.
 
 
Standard of Review
 
        An appellate court reviews a trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). A trial court abuses its discretion when its decision is so clearly wrong it lies outside the zone of reasonable disagreement, or, in other words, the decision was arbitrary, unreasonable, and made without reference to any guiding rules or principles. Id.
 
Analysis
 
        Appellant contends the trial judge erred by admitting the State's exhibit nos. 36, 38, 39, and 40 because the evidence did not properly show appellant was the same person named in the exhibits. The State responds that any error the court may have committed in admitting exhibit nos. 36 and 38 was later corrected by the court when it found they were not properly connected to appellant and would not be considered for any purpose.
        Assuming, without deciding, the trial court erred in admitting State's exhibit nos. 36 and 38, we conclude no harm is shown in the record. See Tex. R. App. P. 44.2(b). The record affirmatively reflects the trial judge gave these two exhibits no weight and did not consider them in assessing punishment.
        Exhibit no. 40 reflects a conviction that was also contained within the multi-page exhibit no. 35. That exhibit was properly connected to appellant by fingerprint identification and has not been challenged on appeal. Thus, we conclude appellant was not harmed by the admission of State's Exhibit no. 40. See id.; Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991).
        Exhibit no. 39 reflects a 1996 misdemeanor possession of marijuana conviction. Again, assuming, without deciding, the trial judge erred by admitting the exhibit, we conclude appellant was not harmed. The record reflects that rather than focusing on the evidence of appellant's prior convictions, the judge focused on the facts and circumstances of the present offense in assessing punishment. Particularly, the judge emphasized the quantity of methamphetamine involved, appellant's flight from the police, and the resulting death of Mendosa. We resolve appellant's sole issue against him.
 
Modification of Judgment
 
        In a cross-point the State asks that we modify the trial court's judgment to accurately reflect appellant's plea and the trial court's finding on the enhancement paragraph. Appellant did not respond to the cross-point. After reviewing the record, we agree the judgment should be modified.
        The sections of the trial court's judgment regarding the plea and finding to the enhancement paragraph state “N/A.” The record, however, clearly reflects that appellant pleaded not true to the allegation and the trial court found it true. Therefore, the judgment is incorrect. We sustain the State's cross-point. Additionally, the trial court's judgment does not reflect the correct spelling of appellant's middle name.
        We have the power to modify the trial court's judgment to make the record speak the truth when we have the necessary information before us to do so. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment as follows:         We modify the trial court's judgment to show appellant's name is David Nicholas Grinnell.
        We modify the section of the trial court's judgment entitled “Plea to 1st Enhancement Paragraph” to state “Not True.” We modify the section of the trial court's judgment entitled “Findings on 1st Enhancement Paragraph” to state “True.”
        As modified, we affirm the trial court's judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
070405F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Appellant's middle name was spelled “Nicholous” in the original indictment. At the arraignment, appellant told the trial court his name was misspelled in the indictment and should be corrected to reflect a spelling of “Nicholas.” The trial court corrected the indictment to reflect the correct spelling of appellant's name as “Nicholas.” Consequently, we will use the correct spelling of appellant's name in the opinion.
Footnote 3 A copy of the enhancement paragraph is not included in the clerk's record. However, the reporter's record reflects that appellant pleaded not true to the allegation during the punishment hearing.
Footnote 4 The prior convictions about which appellant complains do not include the prior conviction alleged in the enhancement paragraph.