We have a Judge here who is not allowing us to use TDC pen packets because they no longer have a raised seal. I don't believe the rules require Certified public documents to have a "raised seal;" just a seal. Of course, TDC says they won't send us packets with a raised seal because of the time involved given the thousands they produce. Has anyone else had any trouble with getting these in without the raised seal? Does anyone know of any case law on the subject? Any help would be appreciated.

TDC has been sending out 1000s of pen packs without a raised seal for decades, and they've been accepted into probably every district court in Texas and the United States. Apparently your judge is the only one smart enough to figure out that such pen packs are inadmissible.

You must be very lucky to prosecute before such a learned judge.

Terry, I just split my gut laughing! I guess every jurisdiction has a judge that is "learned" in some facet of law in which the rest of the entire legal community is so very wrong in the application of said law. Nice to know.

BILLY BOB SMITH, APPELLANT v. THE STATE OF TEXAS

NO. 2-07-267-CR

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

2008 Tex. App. LEXIS 2849


April 17, 2008, Delivered


JUDGES: PANEL F: GARDNER, J.; CAYCE, C.J.; and MCCOY, J.

OPINION


MEMORANDUM OPINION

1

FOOTNOTES

1 See TEX. R. APP. P. 47.4.


Appellant Billy Bob Smith pleaded guilty to the offense of possession of less than one gram of methamphetamine and not true to two felony enhancements alleged in the indictment. The jury found Appellant guilty, found the enhancement allegations to be true, and assessed punishment of twenty years' confinement and a $ 10,000 fine. The trial court sentenced Appellant accordingly. In two points on appeal, Appellant argues that (1) there is no evidence to support the jury's findings on the enhancement allegations because the dates of the prior convictions alleged in the indictment did not match the dates of the convictions proved by the State at trial and recited in the jury charge and (2) the trial court erred by overruling Appellant's hearsay objections to the pen packets offered by the State to prove the prior convictions. We affirm.

...

Admissibility of Pen Packets

In his second point, Appellant argues that the trial court erred by overruling his hearsay objection to the pen packets offered by the State to prove his prior convictions because they contained "no raised seal, no different colored seal . . . and no original signature . . . ." We review a trial court's evidentiary rulings for an abuse of discretion. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).

State's exhibit 2 is the pen packet reflecting Appellant's 1989 forgery conviction. Exhibit 3 is the pen packet reflecting his 1990 burglary conviction. Exhibits 4 and 5 are pen packets reflecting other convictions for forgery and possession of a controlled substance. The first page of each exhibit is what appears to be a computer-generated affidavit of Larry LeFlore, the chairman of the Bureau of Classification and Records for the Texas Department of Criminal Justice--Correctional Institutions Division. Each affidavit recites that LeFlore is personally acquainted with the facts therein stated and certifies that the attached documents are true and correct copies of original records on file in his office maintained in the regular course of business within the Bureau of Classification and Records. Each affidavit bears a seal--illegible on the copies in the reporter's record--and what appears to be a rubber-stamped, photocopied, or computer-printed facsimile of LeFlore's signature; the signature is identical on all four exhibits.

Rule of evidence 803(8) creates a an exception to the hearsay rule for public records and reports. TEX. R. EVID. 803(8). Likewise, rule 803(22) creates an exception for judgments of previous convictions. TEX. R. EVID. 803(22). Thus, to the extent that Appellant's complaint at trial and on appeal is that the pen packets are hearsay, we hold that the trial court did not abuse its discretion by overruling his hearsay objection.

To the extent that Appellant argues that the pen packets are not properly authenticated under rule 901 and thus inadmissible because they lack a raised seal and the original signature of the attesting witness, we note that rule 901(a) does not require a raised or colored seal. See TEX. R. EVID. 901(a). Moreover, the court of criminal appeals long ago rejected the argument that a facsimile signature stamp on a pen packet renders the attestation defective and the packet inadmissible. Brooks v. State, 599 S.W.2d 312, 323 (Tex. Crim. App. 1979), cert. denied, 453 U.S. 913, 101 S. Ct. 3146, 69 L. Ed. 2d 996 (1981). We therefore overrule Appellant's second point.

Conclusion

Having overruled both of Appellant's points, we affirm the trial court's judgment.

PER CURIAM

PANEL F: GARDNER, J.; CAYCE, C.J.; and MCCOY, J.

DO NOT PUBLISH

TEX. R. APP. P. 47.2(b)

DELIVERED: April 17, 2008

A real learned judge would say "Oh, I didn't know that. The law must have changed. Thank you for letting me know."

The less learned judge would say "That's not law. It's an unpublished opinion."

Lots of luck.

From the 1979 Brooks case cited above:

"The appellant argues that the use of a facsimile signature stamp should not be allowed in this situation. This precise contention has been previously presented and rejected in Huff v. State, 560 S.W.2d 652 (Tex.Cr.App.1978), and Ex parte Spencer, 171 Tex.Cr.R. 339, 349 S.W.2d 727 (1961). The appellant has presented neither arguments nor authorities which persuade us to deviate from Huff and Spencer. Appellant's contention is overruled."