Marvin Gaines v. The State of Texas--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-91-034-CR

MARVIN GAINES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court # 18,499-85

O P I N I O N

On May 18, 1990, we reversed Appellant's conviction for delivery of a controlled substance and remanded the cause for a new trial. At the new trial, Appellant was again convicted of delivery of a controlled substance. He appeals his conviction complaining that the court erred when it admitted excised photographs and refused to order an updated presentence investigation report. We will affirm.

The State offered into evidence three photographs of Appellant for the purpose of proving identity. Appellant objected on the grounds that one photograph depicted him handcuffed and the other two were police "mug shots" with the identification numbers visible. The court sustained the objections but allowed the State to excise the objectionable material from the photographs. The State reoffered the excised photographs but Appellant objected again on the ground that, because the unexcised photographs had already been offered, the altered pictures were highly prejudicial and inflammatory. The court overruled this objection and admitted the photographs into evidence. Appellant then moved for a mistrial on the ground that jury had seen the unexcised photographs. His first point is based on the overruling of his objection and the denial of his motion for a mistrial.

Generally, a mug shot which reflects the commission of an extraneous offense is inadmissible. Richardson v. State, 536 S.W.2d 221, 223 (Tex. Crim. App. 1976). However, the picture may be admissible if all identification marks which tend to show the commission of an extraneous offense are removed. Huerta v. State, 390 S.W.2d 770, 772 (Tex. Crim. App. 1965).

The excised photographs, which did not contain any marks which tended to show the commission of an extraneous offense, were admissible. Furthermore, Appellant's complaint that the jury actually saw the unexcised pictures which were excluded is not supported by the record. The court responded to the motion for a mistrial as follows:

A couple of things I need to clarify. While the outside barrier to the jury box and the outside barrier to the witness stand are, in fact, about three feet away from one another, the jurors' eyes, as they are seated in the jury box, are [a] good five to six feet away from where these photographs were taken, and I think that . . . [the] representation that the jury was only three feet away from these [unexcised] pictures at the time is a misrepresentation of what actually occurred here.

Also, I would note that the table upon which these photographs were laid [is] at least above eye level of the front row of the four jurors in the jury box, and in my opinion there is no way that from that distance and in that character any member of the jury could have seen anything in the manner in which those photographs were presented to the witness or could have identified any of the excised portions.

Point one is overruled.

At the second trial, rather than order another presentence investigation report, the court relied upon the presentence investigation report of September 21, 1989, which was used at the first trial. Appellant argues in point two that the court should have ordered an updated report before sentencing him.

Before sentencing a defendant, "the court shall direct a probation officer to report to the court in writing on the circumstances of the offense with which the defendant is charged, . . . the criminal and social history of the defendant, and any other [pertinent] information." Tex. Code Crim. Proc. Ann. art. 42.12, 9(a) (Vernon Supp. 1991). Here, the court had a written presentence investigation report detailing the circumstances of the offense charged, i.e. delivery of a controlled substance. Appellant cites no authority and we can find none that suggests that the report must be updated if a new trial is ordered. Furthermore, at the punishment phase Appellant testified that, during the four months he had been out of jail, he had not been arrested for any offense and had done mechanic work, tinting windows and chores around the house. The court, therefore, did have an update of Appellant's criminal and social history. We overruled point two.

Affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed December 18, 1991

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