Donald Ray Richardson v. The State of Texas--Appeal from 54th District Court of McLennan County

NO. 10-90-156-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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DONALD RAY RICHARDSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 54th Judicial District Court

McLennan County, Texas

Trial Court # 90-60-C

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O P I N I O N

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A jury convicted Donald Ray Richardson of possession of a controlled substance with intent to deliver and sentenced him to fifty years in prison. See Tex. Health & Safety Code Ann. 481.112 (Vernon 1991). Appellant complains that the court erred in allowing into evidence (1) a report written by a chemist who analyzed the substance found but did not testify and (2) a penitentiary packet in which the judgment and sentence of a prior conviction were not certified by the clerk of the convicting court. He also contends that the court erred in denying his motion for a mistrial. We overrule these points and affirm the judgment.

To prove the substance was cocaine, the State offered the written report of an analysis performed on the substance through the testimony of the custodian of records of the Texas Department of Public Safety. Appellant claims in his first point that because the chemist who analyzed the substance did not testify, the report was inadmissible hearsay. At the time the report was offered, the following exchange took place:

[STATE]: At this time, your honor, we would offer both State's Exhibit Number 1 and Number 2 into evidence.

[DEFENSE]: Your Honor, if it please the Court, we're going to object to State's Exhibit Number 1. Your Honor, there's been an improper chain of custody. In fact, the chain of custody was broken. This State's Exhibit Number 1 is not in the original packaging. It has been repackaged, from the police officer's own testimony. Your Honor, we would object that the proper chain of custody hasn't been followed, nor the proper predicate on State's Exhibit Number 1.

THE COURT: Overruled.

[DEFENSE]: Your honor, we would object to State's Exhibit Number 2, the controlled substance submission report. Your Honor, the document that's been signed by Debbie Reagan, there has been no evidence shown that--where the source of the cocaine was that they used to compare to the Exhibits Number 1 and 2. Your Honor, without that source, this is inadmissible.

THE COURT: Overruled.

Because Appellant's apparent chain-of-custody objection is not the same as his inadmissible-hearsay complaint on appeal, we cannot consider this point. See Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988). We overrule point one.

Appellant's second point has already been decided by the case of Reed v. State. See Reed v. State, No. 222-90, slip op. (Tex. Crim. App., May 15, 1991). His complaint is that the copies of the judgment and sentence contained in the penitentiary packet used for enhancement failed to reflect a certification by the clerk of the convicting court. The court in Reed makes clear that the judgment and sentence need not reflect the convicting court clerk's certification if the penitentiary packet was properly authenticated under Texas Rules of Evidence 901 or 902. See id.; Tex. R. Crim. Evid. 901, 902. As in Reed, the copies of the judgment and sentence in this case were certified by the record clerk of the Texas Department of Corrections, which is now the Texas Department of Criminal Justice, Institutional Division. See Reed, No. 222-90 at 1. The court held in Reed that the "TDCJID record clerk's certification of the pen packet copies of the judgment and sentence constitutes sufficient extrinsic evidence that the copies are authentic." See id. at 9. Additionally, the State offered, through another exhibit, copies of the judgment and sentence which were duly certified by the clerk of the convicting court. We overrule Appellant's second point.

Appellant's final point alleges that the court should have granted his motion for a mistrial after sustaining his relevancy objection to the State's following line of questioning about two of his girl friends:

Q. Cynthia Nowlin. Do you know Cynthia Nowlin?

A. Yes, sir, I do.

Q. A girl friend of yours, isn't she?

A. She used to be.

Q. While you were married to this wife who's home taking care of your baby. Right?

A. Yes, sir.

Q. Do you know Tosha Yolanda Hicks?

A. Yes, sir, I do.

Q. Another girl friend, isn't she?

A. Yes.

Q. While your wife was home taking care of the baby.

A. Yes, sir.

[DEFENSE]: Your Honor, we're going to object to the relevancy of this line of questioning.

THE COURT: Sustained.

[DEFENSE]: Ask for an instruction.

THE COURT: I instruct the jury, you'll disregard the last statement of counsel for any purpose whatsoever.

[DEFENSE]: Your Honor, I ask for a mistrial.

THE COURT: Overruled.

No objections were made to the questions concerning Cynthia Nowlin, and Appellant's objection to questions concerning Tosha Hicks was not timely. A failure to object at the earliest opportunity waives any alleged error. Thompson v. State, 691 S.W.2d 627, 635 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985); Montelongo v. State, 681 S.W.2d 47, 57 (Tex. Crim. App. 1984). We overrule point three.

The judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed June 6, 1991

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