David Glen Owens v. State

• Court: Court of Appeals of Texas
• Decided: December 2, 2008
• Docket: 14-07-00857-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed December 2, 2008

Affirmed and Memorandum Opinion filed December 2, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00857-CR

NO. 14-07-00858-CR

DAVID GLEN OWENS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause Nos. 07CR0007 & 07CR0008

M E M O R A N D U M   O P I N I O N

Appellant David Glen Owens was convicted by a jury of possession of cocaine and of felony evading arrest.  At his punishment hearing, the trial court found two enhancement paragraphs to be Atrue@ and sentenced appellant to twenty-five years= and twelve years= imprisonment, respectively.  In his sole issue, appellant challenges the sufficiency of the evidence supporting the trial court=s true finding on the enhancements.  We affirm.

At punishment, the State sought to prove appellant had twice been convicted of felony offenses as alleged in the enhancement paragraphs by offering original judgments, certified copies thereof, and penitentiary packets (Apen packets@) for two felony convictions of a defendant with appellant=s name.  The State also offered the testimony of forensic investigator Michael Bell, along with known impressions of appellant=s fingerprints taken by Bell prior to the hearing.  Bell testified that the print on the original judgment for the first enhancement, from which the certified copy was made, matched the known impression of appellant=s right index finger.  Regarding the second enhancement, Bell testified that the print on the original judgment, the certified copy thereof, and the known impression of appellant=s right thumb were one and the same and produced by the same person.

However, Bell testified that the fingerprint impressions provided in the pen packets were of insufficient quality to make a comparison with the known impressions.  Further, one pen packet photograph was missing, and Bell was only able to identify the individual in the provided pen packet photograph as a black male.  The Texas Department of Criminal Justice attached a note to each pen packet stating that the poor quality of the fingerprints and photographs provided resulted from the poor quality of the originals.

After hearing the evidence and taking judicial notice of the original indictments and judgments for the enhancement convictions, the trial court found the enhancements true and imposed sentence.  Appellant now challenges the sufficiency of the evidence linking him to the prior enhancement convictions.  Specifically, he alleges that the pen packets and fingerprint evidence provided by the State were of insufficient quality to prove that he is the same person previously convicted in the prior enhancement convictions.

Although appellant does not specify whether he is challenging the legal or factual sufficiency of the evidence, we note that the Court of Criminal Appeals has applied a legal sufficiency analysis in reviewing punishment enhancement issues.  Jordan v. State, 256 S.W.3d 286, 289 (Tex. Crim. App. 2008); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000); see also Freeman v. State, No. 05-00-00680-CR, 2001 WL 1219291, at *5 (Tex. App.CDallas Oct. 15, 2001, pet. ref=d) (not designated for publication).  In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  We are to also review punishment issues for factual sufficiency if they involve a question of historical fact, such as whether the defendant at punishment is the same person named in the prior conviction.  See Wardrip v. State, 56 S.W.3d 588, 590B91 (Tex. Crim. App. 2001); Ward v. State, 143 S.W.3d 271, 274 (Tex. App.CWaco 2004, pet. ref=d); Freeman, 2001 WL 1219291, at *5.  In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only if we are able to say, with some objective basis in the record, that the conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006).

To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists and (2) the defendant is linked to that conviction.  Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).  The trier of fact must look at the totality of the evidence admitted to determine whether those two elements were proven beyond a reasonable doubt, but no specific document or mode of proof is required.  Id. at 921, 923.  For instance, the State may link a defendant to a prior conviction by introducing certified copies of the judgment and sentence containing the defendant=s fingerprints, supported by expert testimony identifying the prints as the defendant=s.  See id. at 922; Littles v. State, 726 S.W.2d 26, 31B32 & n.1 (Tex. Crim. App. 1984). 

Here, both the originals^[1] and certified copies of two convictions of a defendant bearing appellant=s name were provided, establishing that the prior convictions exist.  Bell=s expert testimony identified the fingerprint on each original judgment from which the certified copies were made as appellant=s, linking him to the convictions.  The poor quality or absence of the pen packet items is of no consequence here because Bell was able to link appellant to the convictions through his expert fingerprint testimony based on reliable evidenceBBthe original judgment, certified copies thereof, and known impressions of appellant=s fingerprints.  The Court of Criminal Appeals has expressly rejected the notion that there are exclusive manners of proving a defendant=s identity as to prior felonies used for enhancement.  Littles, 726 S.W.2d at 32.  Rather, the court held that each case has to be judged on its own merits and that where, as in the instant case, unorthodox proof is nevertheless clearly sufficient, no error will be found.  See id.

Here, the trial court, as the trier of fact, found that the totality of the State=s evidence proved the enhancement paragraphs to be true beyond a reasonable doubt.  After reviewing the record in the light most favorable to the trial court=s finding, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant was the same person previously convicted in the prior enhancement convictions.  Furthermore, after reviewing the totality of the evidence in a neutral light, we find no objective basis in the record for saying that the trial court=s judgment is clearly wrong or manifestly unjust because it is contradicted by the great weight and preponderance of the evidence.  Having concluded that the evidence is sufficient to support the trial court=s finding, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed December 2, 2008.

Panel consists of Justices Yates, Seymore, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Although appellant objected below to the State=s use of original copies of his prior convictions taken from the convicting courts= files, he does not raise that issue on appeal.  Accordingly, we do not address it.