Cruz v. State

346 S.W.3d 601, 2009 Tex. App. LEXIS 1447, 2009 WL 475784

• Court: Court of Appeals of Texas
• Decided: February 26, 2009
• Docket: 08-06-00294-CR
• Status: Published

Opinions

OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Guadalupe Cruz appeals his conviction for driving while intoxicated (DWI), third or greater offense, habitual offender enhanced by two previous DWI convictions. He was convicted by a jury and sentenced to 48 years confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000.

Guadalupe Cruz was charged with felony driving while intoxicated. See Tex.Pen. Code Ann. § 49.04 (Vernon 2003), § 49.09(b)(2)(Vernon Supp.2008). Appellant stipulated to the two requisite prior convictions for felony DWI. The indictment contained enhancement paragraphs alleging two other prior felony convictions for DWI in cause number 1404 in 1983 and cause number 2523 in 1990 from the 109th Judicial District Court of Andrews County. The jury found him guilty of the charge.

At the punishment phase of the trial, Appellant entered a plea of not true to.the enhancement paragraphs. The State called Sheriff Sam Jones, who had special training for fingerprint identification, and showed him copies of judgments labeled State’s Exhibits 3, 4, 5, 8, and 9. The indictment only charged the convictions in cause number 1404, States Exhibit 3, and 2523, State’s Exhibit 5, for enhancement purposes. Sheriff Jones fingerprinted Appellant and compared them to the fingerprint on the judgments and booking packets related to those judgments without a fingerprint. The judgment for cause number 1404 did not have a fingerprint identification on it. The judgment for cause number 2523 did have the eonvicted’s fingerprint on it. Sheriff Jones testified that a booking packet is created when a person is again taken to jail and contains information relating to the charges, and a new booking packet is created every time someone is taken to jail. Sheriff Jones testified that the Appellant’s fingerprints matched the fingerprints in Exhibit 5 on the judgment and the corresponding booking packet for Exhibit 3.

In his sole issue, Appellant contends the evidence proving one of his prior DWI convictions for enhancement purposes was legally insufficient. The standard of review is, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

It is well settled that a prior conviction may be established by certified copies of a judgment and a sentence and authenticated copies of the penitentiary records including fingerprints, supported by expert testimony identifying them as matching those of the defendant. Rosales v. State, 867 S.W.2d 70, 72-3 (Tex.App.-El Paso 1993, no pet.), citing Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App.1986). While this is the most common method used, there are many different ways to establish the prior conviction. See Littles v. State, 726 S.W.2d 26, 31 (Tex.Crim.App.1984)(Opin. on reh’g). The essential element in proving the fact of a prior conviction is evidence of identity which is independent of or in addition to the evidence shown in the penitentiary packet. Zimmer v. State, 989 S.W.2d 48, 50 (Tex.App.San Antonio 1998, pet. ref'd), citing Griffin v. State, 866 S.W.2d 754, 756 (Tex.App.Tyler 1993, no pet.). Properly authenticated copies of judgments and sentences are admissible at trial, but the relevance of those records showing a prior conviction is conditioned upon the introduction of evidence sufficient to support a finding that the defendant on trial is the person who was previously convicted. Rosales, 867 S.W.2d at 72-3.

In the ease before us, we have the testimony of Sheriff Jones that Appellant’s fingerprints match the fingerprints in a booking packet associated with the charge in cause number 1404. It was his opinion that the Guadalupe Cruz in the courtroom was the same Guadalupe Cruz who was convicted in the judgment and sentence of cause number 1404. The booking packet itself was never offered or admitted into evidence. While we have certified copies of the judgment and sentence, there is no authenticated copy of the booking packet in the record. To establish a prior conviction in the manner attempted by the State, certified copies of a judgment and a sentence and authenticated copies of the prison records including fingerprints, supported by expert testimony identifying them as identical with known prints of the defendant must be introduced. Beck, 719 S.W.2d at 209; Timberlake v. State, 711 S.W.2d 50, 51-2 (Tex.Crim.App.1986).

The only evidence presented in regards to the prior conviction at the punishment hearing was the testimony of Sheriff Jones that the fingerprints from the booking packet associated with cause number 1404, which is not in evidence, matches those of the Appellant and a judgment and sentence convicting a person named Guadalupe Cruz of felony DWI. We do not have evidence showing that the person named in the judgment for cause number 1404 is the same as the person named in the booking packet or who stood trial for this offense. While the identical names indicate the person is probably the same, probably is not good enough when it is the critical element being used for enhancement. Zimmer, 989 S.W.2d at 52. Without the booking packet in evidence, there is insufficient evidence to link the defendant from the judgment in cause number 1404 to the defendant who was on trial in this case. The State failed to meet its burden of proving beyond a reasonable doubt the defendant’s prior conviction. We sustain Appellant’s sole issue.

We therefore reverse the portion of the judgment assessing punishment and the sentence, and remand the case to the trial court for a new trial on the issue of punishment only. See Tex.Code Crim.Proc.Ann. 44.29(b)(Vernon Supp.2008).

CARR, J. (Not Participating).

McCLURE, J., Concurring.