James Benjamin Malone v. State

Malone v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00621-CR

James Benjamin Malone, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT

NO. 94-810-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING

In a jury trial, James Benjamin Malone, appellant, was convicted of theft and unauthorized use of a motor vehicle, both third degree felonies. See Tex. Penal Code Ann. §§ 31.03 & 31.07 (West 1994). The jury found appellant to be a habitual offender and assessed his punishment at ninety-nine years' imprisonment for each crime.⁽¹⁾ In six points of error, appellant challenges his conviction. He argues the trial court committed reversible error by: (1) not requiring the State to elect under which count of the indictment it was going to proceed; (2) submitting an improper enhancement paragraph to the jury; (3) failing to properly instruct the jury on punishment; and (4) failing to admonish him that a guilty plea could result in deportation if he was not a United States citizen. Appellant also complains that the state and federal constitutional protections against double jeopardy prohibit conviction for both theft and unauthorized use of the same motor vehicle. Finally, appellant contends that he was denied effective assistance of counsel throughout his trial. We will affirm the trial court's judgment.

BACKGROUND

In two counts, appellant was indicted of theft (count one) and unauthorized use of a motor vehicle (count two). See Tex. Penal Code Ann. §§ 31.03 & 31.07 (West 1994). The indictment also alleged appellant was an habitual offender. After the jury was selected and sworn, appellant pleaded not guilty to theft and guilty to unauthorized use. Before opening statements, appellant's counsel notified the trial court that he would be moving to have the State elect under which count it would proceed after the State had rested its case. The State then informed appellant that it intended to proceed on both counts. At the conclusion of the State's case-in-chief, appellant filed a handwritten "Motion for the State to Elect" requesting the trial court to direct the State to elect under which count of the indictment it was going to proceed. The trial court heard argument from both parties and denied appellant's motion. At the trial's conclusion, the jury found appellant guilty of both counts and assessed punishment at ninety-nine years for each count.

DISCUSSION

Motion to Elect

Appellant's first point of error challenges the trial court's denial of his motion for the State to elect. Appellant argues that the motion was proper pursuant to section 3.04 of the Texas Penal Code and should have been granted unless it unjustly delayed the trial, impeded justice, inconvenienced witnesses, or prejudiced the State. We disagree.

By statute, two or more offenses may be joined in a single indictment, with each offense stated in a separate count, if the offenses arise out of the same criminal episode. Tex. Code Crim. Proc. Ann. art. 21.24(a) (West 1989); Tex. Penal Code Ann. § 3.02(a) (West 1994). Although the State has the discretion to join multiple offenses arising from the same criminal episode in a single indictment, a criminal defendant has a right to request a severance of these offenses. Tex. Penal Code Ann. § 3.04(a) (West 1994). When such a request is timely made, the defendant's right to a severance is absolute, and severance is mandatory. Coleman v. State, 788 S.W.2d 369, 371 (Tex. Crim. App. 1990); Nolte v. State, 854 S.W.2d 304, 307 (Tex. App.--Austin 1993, pet. ref'd).

At trial, appellant cited Fortune v. State, 745 S.W.2d 364 (Tex. Crim. App. 1988), as the precedent for granting his motion to elect. In Fortune, the court of criminal appeals held that, in the case of misjoinder, a defendant has three options: (1) make a motion to quash the indictment; (2) force the State to elect the count upon which it will proceed; or (3) wait and urge error on appeal. Appellant, relying on Fortune, presented a motion for the State to elect. A motion to elect, however, is premised on the assumption that misjoinder has occurred. See Coleman, 788 S.W.2d at 373. Appellant does not dispute that these two offenses arise out of the same criminal episode, and he concedes that the joinder of theft and unauthorized use charges was proper and the indictment was free of defect. Therefore, a motion to elect was not a proper method by which to sever these charges.

Under certain circumstances, a motion to elect may amount to a motion to sever. Coleman, 788 S.W.2d at 372; Overton v. State, 552 S.W.2d 849, 850 (Tex. Crim. App. 1977). A motion to elect may be construed as a motion to sever even though it never once uses the word "sever" or "severance" if it timely apprises the trial court that the defendant does not desire to have his offenses joined in a common trial. Coleman, 788 S.W.2d at 372. However, when a motion to elect does not indicate the defendant's desire for separate trials, it is not construed as a motion to sever and is properly overruled. Id. at 373. Here, appellant's motion to elect requested the court to direct the State to choose under which count of the indictment it would proceed; however, it did not indicate any request for separate trials of the separate offenses, and as noted above, the two offenses were properly joined in a single charging instrument. Finally, the motion to elect was not presented until after the State had concluded its case-in-chief and appellant had pleaded guilty to the unauthorized use count. The lateness of the motion reveals it was not intended to be a request for a severance or for separate trials of the two counts. Therefore, the trial court properly denied appellant's motion. We overrule appellant's first point of error.

Double Jeopardy

In his sixth point of error, appellant argues that the constitutional protection against double jeopardy bars his prosecution for the offenses of theft and unauthorized use of a motor vehicle where both offenses involve the same vehicle and the same transaction. U.S. Const. amend V; Texas Const. art. I, § 14. We need not reach the merits of appellant's argument because the point was never raised in the trial court and is untimely raised on appeal.

Appellant raised this point of error for the first time in a supplemental brief filed the day of oral argument. As a general rule, all points of error presented for appellate review must be included in the original brief. Tex. R. App. P. 74(p); Rochelle v. State, 791 S.W.2d 121, 124 (Tex. Crim. App. 1990). An additional point of error contained only in a supplemental brief is not properly before the court for review. Berrios-Torres v. State, 802 S.W.2d 91, 94-95 (Tex. App.--Austin 1990, no pet.). An appellant may present a new point of error in a supplemental brief only with leave of the court "when justice requires." Tex. R. App. P. 74(o); Rochelle, 791 S.W.2d at 124. In the instant case, appellant has not requested leave to file a new point of error. We hold that appellant's new point of error is not properly before this Court. We overrule appellant's sixth point of error.

Prior Conviction Evidence

In his third point of error, appellant claims the trial court committed reversible error by admitting evidence of a prior conviction when the date of conviction alleged in the indictment differed from the conviction date shown by the State's evidence. The indictment in this case alleges that appellant had been finally convicted of the felony offense of unauthorized use of a motor vehicle in cause number F78-169-N on November 10, 1978. In support of this allegation, the State introduced in evidence State's Exhibit Number 10, the "penitentiary packet"⁽²⁾ in cause number F78-169-N, and State's Exhibit Number 19, the judgment and sentence in cause number F78-169-N. Both exhibits reflect that appellant was sentenced on November 9, 1978, and adjudged guilty on November 10, 1978. Appellant contends that the variance between the two dates is fatal and, therefore, evidence of his prior conviction should have been excluded. We disagree.

The purpose of an enhancement allegation is to provide the accused with notice of the prior conviction relied upon by the State. Coleman v. State, 577 S.W.2d 486, 488 (Tex. Crim. App. 1979). The enhancement allegation need not have the specificity required of the primary count. Id. at 488. A variance between the enhancement allegation and its proof must mislead and prejudice a defendant to be considered material and fatal. Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986); Plessinger v. State, 536 S.W.2d 380 (Tex. Crim. App. 1976). A variance between the date of the conviction alleged in an enhancement paragraph of an indictment and the date of the conviction shown by the State's evidence is not fatal. See, e.g., Thompson v. State, 563 S.W.2d 247 (Tex. Crim. App. 1978) (allegation of October 17, proof of October 19); Benton v. State, 770 S.W.2d 946 (Tex. App.--Houston [1st Dist.] 1989, pet. ref'd) (allegation of February 22, 1985, proof of February 27, 1987). In the instant case, the indictment correctly alleged the cause number of the earlier offense, the convicting court and its location, and that the offense was a felony. Appellant has not demonstrated that he was misled or prejudiced by the alleged variance. Accordingly, we hold that the variance between the enhancement paragraph and the State's proof was not fatal. Appellant's third point of error is overruled.

Jury Charge

In his fourth point of error, appellant argues that the trial court failed to properly apply the law to the facts in its instruction to the jury on punishment. Specifically he complains that the trial court failed to: (1) set forth with specificity what the jury must find beyond a reasonable doubt; and (2) instruct the jury that they must find beyond a reasonable doubt that the first enhancement conviction became final prior to the date of the occurrence of the offense in the present case. Appellant argues that these alleged errors render the instruction fundamentally defective. We disagree.

Appellant was punished pursuant to section 12.42(d) of the Texas Penal Code which states:

If it be shown on a trial of any felony offense that the defendant has previously been finally convicted of two felony offenses and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life or for any term not more than 99 years or less than 25 years.

Tex. Penal Code Ann. § 12.42(d) (West 1994). After the jury returned verdicts of guilty on both counts, the trial court had the duty of instructing the jury on punishment where evidence of a prior criminal record was to be presented. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(b) (West 1994). The allegedly defective portion of the jury charge is as follows:

If you find beyond a reasonable doubt that the defendant is the person who was so convicted as alleged in any two of the penalty paragraphs of the indictment, and that the conviction in one of the penalty paragraphs was for an offense that occurred after the conviction in the other penalty paragraph [here appellant alleges that the instruction must include "became final"] you have found true, then you will find that the allegations in those paragraphs are true and so state in your verdict, and you will assess the defendant's punishment . . . .

If you find beyond a reasonable doubt that the defendant is the person who was so convicted as alleged in any one, but only one, of the penalty paragraphs of the indictment then you will find the allegations of that paragraph to be true and so state in your verdict, and you will assess the defendant's punishment . . . .

But if you do not so find, or if you have a reasonable doubt thereof you will proceed to assess the defendant's punishment . . . .

Appellant first contends that the jury instruction on punishment was fundamentally defective because it did not set forth with specificity the convictions upon which the jury was to base its findings. In support of this argument, appellant cites two manuals for jury charges and their recommended habitual offender charges. See Paul J. McClung, Jury Charges for Texas Criminal Practice, 26 (revised ed. 1996); Michael J. McCormick, Thomas D. Blackwell, & Betty Blackwell, Criminal Forms and Trial Manual § 98.10 (10th ed. 1995). Both manuals, by example, recommend that the enhancement convictions be described with specificity (court, cause number, style, offense) in the application paragraphs of the jury charge. In the instant case, although the application paragraph of the jury instruction on punishment may be lacking in specificity, the four paragraphs prior to the allegedly defective paragraph track exactly the four penalty paragraphs from the indictment, including the name of the previous offenses, the courts of record, the cause numbers, and the dates of the final conviction. Although the details of each prior conviction were not alleged separately in the application paragraph of the jury instruction, the details of each prior conviction were read to the jury as part of the instruction on punishment. Appellant cites no authority stating a court is required to include the details of the enhancement convictions exclusively in the application paragraph of the jury instruction. We hold that the jury instruction on punishment was sufficiently specific to inform the jurors as to what they were asked to consider.

Appellant's second argument states that the trial court erred by not instructing the jury that it must find that the prior offenses enumerated in the penalty paragraphs became final before appellant's present alleged offenses of theft and unauthorized use. Another court has held a failure to instruct the jury that they must find that the previous conviction became final first does not require a reversal. Damian v. State, 776 S.W.2d 659 (Tex. App.--Houston [14th Dist.] 1989, pet. ref'd). In Damian, the indictment specifically alleged that the previous convictions became final prior to the commission of subsequent offenses. Id. at 665. The jury instruction directed the jury to refer to the enhancement paragraphs alleged in the indictment, and the enhancement paragraphs were read into the record in the presence of the jury. Id. In the instant case, the first paragraph under Roman Numeral One of the charge of the court on punishment reads:

The State of Texas by indictment has further alleged that before the commission of the offense for which he has been found guilty, the defendant had previously been finally convicted of four felony offenses, and that each was for an offense that occurred after a previous conviction became final.

The penalty paragraphs of the indictment were also reproduced in the jury charge. Each paragraph alleged that appellant had been "finally" convicted before the commission of the offenses for which the jury had just found him guilty. We hold that the indictment was adequately referenced throughout the jury charge on punishment. Appellant's fourth point of error is overruled.

Failure to Admonish

Appellant's fifth point of error complains the trial court failed to admonish him that a plea of guilty might result in deportation if he was not a United States citizen. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1989). Appellant argues that this Court should abandon its previous position of substantial compliance with the statute, see Dixon v. State, 891 S.W.2d 783 (Tex. App.--Austin 1995, no pet.), and adopt a standard of strict compliance. We decline to do so.

When admonishing a defendant of the consequences of a guilty plea, substantial compliance with the statute is sufficient. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (West 1989). In the instant case, appellant received no article 26.13(a)(4) admonishment at the time of his guilty plea. At an earlier proceeding, however, the trial court inquired as to appellant's citizenship and received appellant's assurance that he was a United States citizen. An inquiry into a defendant's citizenship and an on-the-record assurance by the defendant substantially complies with the requirements of article 26.13(a)(4). Dixon, 891 S.W.2d at 783-85. Accordingly, we hold that the trial court acted in substantial compliance with article 26.13(a)(4) and overrule appellant's fifth point of error.

Ineffective Assistance of Counsel

Appellant's second point of error alleges appellant was denied effective assistance of counsel. Specifically, appellant contends he received ineffective assistance of counsel when his trial counsel failed to: (1) conduct a proper voir dire; (2) preserve the trial court's error in denying a challenge for cause; (3) enter the proper pleas to the charges of theft and unauthorized use of a motor vehicle; (4) object to the State's characterization of appellant as "gay"; (5) object to the admissibility of photographs depicting appellant in possession of the stolen vehicle; and (6) object to the admissibility of "penitentiary packets" during the punishment phase of his trial. Appellant claims these instances of alleged deficient representation prejudiced his defense and deprived him of a fair trial.

To show ineffective assistance of counsel, appellant must show that: (1) trial counsel's performance was deficient, in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). "Prejudice" is demonstrated when appellant shows that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 690.

In evaluating an ineffective assistance of counsel claim, counsel's performance is to be judged by the "totality of representation" provided. Strickland, 466 U.S. at 690; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). Appellant bears a heavy burden to prove his ineffective assistance claim. We do not judge trial counsel's actions in hindsight. Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App.), cert. denied, 506 U.S. 885 (1992). Counsel is strongly presumed to have provided adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Strickland, 499 U.S. at 690. As a general rule, isolated instances in the record reflecting errors of omission or commission do not necessarily render counsel's representation ineffective. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992); Ex parte Owens, 860 S.W.2d 727, 729 (Tex. App.--Austin 1993, pet. ref'd).

In light of the strong presumption of effective assistance accorded trial counsel's conduct, a trial record is generally insufficient to address claims of ineffective assistance. Jackson v. State, 877 S.W.2d 768, 772 (Tex. Crim. App. 1994) (Baird, J., concurring). An appellant should first adduce facts to support a claim of ineffective assistance in a motion for new trial or a petition for a writ of habeas corpus before raising the claim on appeal. Id.; O'Hara, 837 S.W.2d at 144. When the record contains no evidence of the reasoning behind trial counsel's actions, an appellate court is not permitted to speculate about trial counsel's strategy. Jackson, 877 S.W.2d at 771. In accordance with Strickland, we must presume that trial counsel is better positioned to judge the practicalities of a particular case. Delrio v. State 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). Absent a record reflecting trial counsel's reasoning for his actions, we must conclude that trial counsel's performance was not deficient. Jackson, 877 S.W.2d at 771.

Appellant has the burden of proving ineffective assistance of counsel. Strickland, 466 U.S. at 689. Although appellant in the instant case filed a motion for new trial, no hearing was held on the motion. Trial counsel did not testify as to the reasons for their actions, and no record was generated to support appellant's claim of ineffective assistance. Appellant urges this Court to speculate as to trial counsel's reasoning, but as previously discussed, without a record from which to judge the effectiveness of trial counsel, we must defer to his reasonable professional judgment. See Delrio, 840 S.W.2d at 447.

Appellant first contends that trial counsel rendered ineffective assistance by conducting an incompetent voir dire. Appellant's only evidence is the trial record, from which he draws isolated examples of trial counsel's alleged ineffective assistance. A court should not be swayed by isolated instances of alleged ineptitude. Keiser v. State, 880 S.W.2d 222, 225 (Tex. App.--Austin 1994, pet. ref'd); Haynes v. State, 790 S.W.2d 824, 827 (Tex. App.--Austin 1990, no pet.). The record is silent as to the reasoning behind these isolated instances of alleged deficient representation, and we refuse to speculate. See Jackson, 877 S.W.2d at 771. Appellant also complains that trial counsel rendered ineffective assistance by failing to discuss the presumption of innocence, the State's burden of proof, or the standard of proof beyond a reasonable doubt. It is only necessary for defense counsel to raise questions not raised by the prosecution. Trybule v. State, 737 S.W.2d 617, 620 (Tex. App.--Austin 1987, pet. ref'd). The record reflects that these topics were covered during the State's voir dire. Faced with a silent record and isolated instances of attorney conduct, we find that counsel's voir dire was not deficient under the first prong of the Strickland test.

Appellant's second allegation of ineffective assistance concerns trial counsel's lack of understanding of challenges for cause. During voir dire, trial counsel unsuccessfully challenged for cause a juror who admitted to being unable to consider the entire range of punishment. Although this venire member did not serve on the jury, appellant alleges on appeal that failure to preserve error for the denial of a challenge for cause constitutes ineffective assistance of counsel. If a trial court overrules a defendant's challenge for cause, the defendant may preserve error and establish harm by: (1) exhausting his peremptory challenges; (2) being denied additional peremptory challenges; and (3) showing for the record the seating of a juror upon whom counsel would have exercised a peremptory challenge. Bell v. State, 724 S.W.2d 780, 795 (Tex. Crim. App. 1986). Here, the record is silent as to the reasoning of appellant's trial counsel. Nothing in the record indicates that trial counsel was forced to accept an unacceptable juror. This is an example of the kind of evidence that must be adduced prior to appeal in order for an appellate court to gauge the effectiveness of counsel. As previously discussed, without any evidence as to trial counsel's strategy, we can not find that trial counsel's representation was deficient.

Appellant's third complaint of ineffective assistance involves his plea of not guilty to the charge of theft and guilty to the charge of unauthorized use of a vehicle. After the indictment was presented to the jury, appellant changed his plea from not guilty to both charges to not guilty of theft and guilty to unauthorized use. Appellant argues that such a plea was based on trial counsel's faulty understanding of section 31.01 of the Texas Penal Code. Appellant argues in the alternative that, whatever strategic value a plea of guilty to one offense might have served, trial counsel chose to plead guilty to the wrong offense. Appellant's arguments are speculations, and we will not indulge them. The record contains no evidence of what motivated appellant to change his plea. The only evidence before this Court is the trial record, and appellant stated in the record that his plea was voluntary. Appellant presents no evidence in his point of error to suggest otherwise.

Appellant's fourth allegation of ineffective assistance accuses trial counsel of failing to object to inadmissible evidence. At trial the State introduced seven photographs in evidence, each depicting appellant posing with the stolen automobile. The police seized the photographs from inside appellant's briefcase in his hotel room after he was placed under arrest. Grover Cleveland Walker, III, who was with appellant in the hotel room at the time of his arrest, gave the police permission to search the hotel room and take the photographs. Trial counsel sought to suppress these photographs with a pretrial motion, and the court carried the motion forward to consider during the trial. At trial, trial counsel did not object to the introduction in evidence of two of the photographs in which the owner of the car, testifying as a witness, identified his stolen car. Trial counsel did object to the admission of the other five photographs on the grounds that they were duplicative and unnecessary to establish the presence of the defendant with the car. Appellant alleges on appeal that third-party consent to search another person's briefcase is not valid consent to search, and a timely and proper objection by trial counsel would have prevented the admission of the photographs in evidence.

Although it would appear that counsel's performance in failing to object was deficient, we can not determine from the record before us whether the failure to object was part of counsel's trial strategy. We note for example that the photographs were offered initially through the owner of the car. Thereafter, eyewitnesses identified appellant and placed him with the stolen car. It could have been, therefore, that defense counsel decided not to object to evidence that they knew to be cumulative. In addition, the record indicates that the introduction of the photographs had no bearing on the subsequent conviction, and any alleged error of trial counsel was harmless as a matter of law.

Appellant's fifth example of ineffective assistance of counsel is trial counsel's failure to object to the prosecutor's characterization of appellant as "gay." In his opening statement, the prosecutor told the jury that appellant had met a State's witness "in Dallas at a gay bar." Appellant contends that this information was irrelevant and prejudicial and should have been excluded by a motion in limine. The record affirmatively shows that trial counsel later brought appellant's homosexuality into issue as a means of mitigating punishment. Therefore it appears from the available record that it was trial counsel's strategy not to object. The trial record reflects that trial counsel's representation was not deficient, and in the absence of an additional record disclosing trial counsel's strategy, we will not engage in speculation.

Appellant's sixth complaint of ineffective assistance asserts that trial counsel failed to object to inadmissible evidence introduced during the punishment phase of the trial. Effective assistance of counsel during the punishment phase of a trial is governed by a reasonably effective assistance of counsel standard. Ex parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App. 1987). The test for effective assistance is: (1) whether counsel was reasonably likely to render effective assistance; and (2) whether counsel reasonably rendered effective assistance. Ex parte Duffy, 607 S.W.2d 507, 514 n.14 (Tex. Crim. App. 1980); see also Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App. 1992); Ex parte Walker, 794 S.W.2d 36, 37 (Tex. Crim. App. 1990).

Appellant contends that trial counsel's failure to object permitted the introduction in evidence of inadmissible hearsay, inadmissible details of prior convictions, and improperly authenticated and identified documents. At trial, the State introduced State's Exhibit 12, the penitentiary packet in Cause Number F85-038-HR, State's Exhibit 15, the penitentiary packet in Cause Number M87-5105-L, and State's Exhibit 18, court documents in Cause Number 16029. Exhibit 12 contained a Texas Department of Corrections "Inmate Tracking System" form, Exhibit 15 contained a "Prisoner Custody, Detention and Disposition Record," and Exhibit 18 contained a "Waiver of Constitutional Rights," an "Agreement to Stipulate and Judicial Confession," a "Waiver of Presentence Report," a "Defendant's Affidavit of Indigency," and a "State's Motion to Strike Words or Paragraphs of the Indictment." Although appellant concedes that the penitentiary packets are admissible for the purposes of proving prior convictions, he claims that each of these documents contained inadmissible hearsay to which trial counsel failed to object. We hold that while the aforementioned documents may have contained hearsay, the materials contained within the exhibits were innocuous and played no role in the jury's assessment of punishment.

Appellant also contends that trial counsel rendered ineffective assistance by failing to object to the admission of exhibits containing details of prior convictions. The State introduced State's Exhibit 13, a Stipulation of Facts in Cause Number F85-038-HR, and State's Exhibit 16, an arrest report in Cause Number 16029. Appellant relies on Cliburn v. State, 661 S.W.2d 731 (Tex. Crim. App. 1983), and contends both exhibits are inadmissible because details of a prior conviction cannot be used to prove the prior conviction. We hold that Cliburn does not apply to the facts of this case. The record shows that the penitentiary packet in Cause Number F85-038-HR (State's Exhibit 12) and the penitentiary packet and other court documents in Cause Number 16029 (State's Exhibits 17 and 18) were also introduced in evidence. The introduction of these other exhibits rendered the admission of Exhibits 13 and 16 cumulative and harmless.

Appellant's final complaint is that trial counsel provided ineffective assistance by failing to object to improperly authenticated and identified evidence. State's Exhibit 12, the aforementioned penitentiary packet in Cause Number F85-038-HR, contained a copy of a judgment for an unrelated offense, Cause Number 396617. Appellant concedes that the penitentiary packet was properly authenticated and admissible, but he claims that the extraneous document was not authenticated and therefore inadmissible. The State also introduced State's Exhibits 13-24, copies of judgments and other court documents related to appellant's convictions. The State's fingerprint expert testified that documents with identical cause numbers are records from the same conviction, and exhibits 13-24 were admitted. Appellant contends that a simple comparison of cause numbers was insufficient to prove his identity as the same person previously convicted. The record shows that the judgments and court documents in exhibits 13-24 were mostly comprised of copies of documents already admitted in evidence. Although the State's exhibits may have been vulnerable to hearsay objections on the grounds of improper identification or authentication, their admission in the instant case was cumulative and harmless. We hold that trial counsel rendered reasonably effective assistance during the punishment phase of the trial. Appellant's second point of error is overruled.

CONCLUSION

Having overruled all six of appellant's points of error, we affirm the judgment of the trial court.

Mack Kidd, Justice

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Affirmed

Filed: March 6, 1997

Do Not Publish

1. ¹ The range of punishment under these circumstances is a term of years between twenty-five and ninety-nine years or life imprisonment. See Tex. Penal Code Ann. § 12.42(d) (West 1994).

2. ² A "penitentiary packet" is a record of a prior conviction containing a copy of the judgment and sentence in the case, the prisoner's fingerprints and photograph taken upon admission to the prison, and a physical description of the inmate. George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 38.90 (1995).

mber 16029. Exhibit 12 contained a Texas Department of Corrections "Inmate Tracking System" form, Exhibit 15 contained a "Prisoner Custody, Detention and Disposition Record," and Exhibit 18 contained a "Waiver of Constitutional Rights," an "Agreement to Stipulate and Judicial Confession," a "Waiver of Presentence Report," a "Defendant's Affidavit of Indigency," and a "State's Motion to Strike Words or Paragraphs of the Indictment." Although appellant concedes that the penitentiary packets are admissible for the purposes of proving prior convictions, he claims that each of these documents contained inadmissible hearsay to which trial counsel failed to object. We hold that while the aforementioned documents may have contained hearsay, the materials contained within the exhibits were innocuous and played no role in the jury's assessment of punishment.