Opinion issued December 21, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00249-CR NO. 01-22-00250-CR ——————————— JOEY HARPER, Appellant V. STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas Trial Court Case Nos. 1635582 & 1635583
MEMORANDUM OPINION
Appellant Joey Harper appeals his convictions for aggravated assault with a
deadly weapon and felon in possession of a weapon. See TEX. PENAL CODE
§§ 22.02(a)(2), 46.04(a). A jury found him guilty of both crimes. After Harper pleaded not true to a sentencing enhancement, the jury found it true and sentenced
him to 24.5 and 10 years’ imprisonment, respectively. The trial court ordered the
sentences to run concurrently. On appeal, Harper contends that the evidence was
insufficient to support the jury’s finding regarding the sentencing enhancement.
We affirm.
Background
This case concerns a shooting in the parking lot of a 24 Hour Fitness.
Harper, who uses a wheelchair after the loss of his legs, was a member of the gym.
On Father’s Day in 2019, Harper went to the gym’s childcare and attempted to take
a young girl away with him. At the time, he was on the phone with the girl’s
mother. He told the employee monitoring the childcare area that the girl’s mother
gave permission for him to retrieve her daughter. The childcare worker would not
allow him to take the girl. She told him that the gym’s policy is that the person
who brings a child must also pick the child up, and she enforced the policy. While
she was speaking with Harper, the child’s father, Nehemias Olmedo, returned to
get her. Olmedo and his daughter left the childcare area and left the gym.
Olmedo and his daughter went to their car in the parking lot. After he
secured his daughter in her carseat, Olmedo turned around and saw Harper
pointing a gun at him. Olmedo lunged at Harper to get the gun away from him. At
that point, Olmedo realized that Harper had shot him because he had no feeling in
2 his leg. Olmedo fell to the ground, and Harper fell to the ground and out of his
wheelchair. Harper got back in his wheelchair and fled. He was later arrested a few
blocks away. Olmedo was transported to the hospital where surgeons discovered
two bullets in his body.
During the guilt-innocence phase of trial, the trial court admitted into
evidence a certified judgment and sentence naming Joey Harper and convicting
him of stalking. See TEX. PENAL CODE § 42.072. The document included the date
of the offense and conviction, cause number, height, weight, tattoos, hair color, and
eye color. It also contained facial and side profile photographs. The photographs
showed a tattoo on the left cheek. Among other witnesses, the jury heard from the
childcare worker at the gym. She stated that she regularly saw Harper at the gym
and was familiar with him. The childcare worker viewed the exhibit and identified
the person in the photographs as Harper. She also identified Harper in the
courtroom.
The jury found Harper guilty of felon in possession of a weapon and
aggravated assault with a deadly weapon. During the punishment phase of trial,
Harper called Greg Gardner to testify. Gardner testified that Harper had been to
prison for stalking and said he had personal knowledge of the facts of the case. He
also testified that he met Harper in approximately 2009 and that they met after
Harper had been to prison for stalking. The State presented the same judgment and
3 sentence for the same stalking conviction and alleged it as an enhancement to the
aggravated assault with a deadly weapon conviction. The jury found the
enhancement true.
Sufficiency of the Evidence to Support Enhancement Paragraph
In one issue on appeal, Harper contends that the evidence is legally
insufficient to link him to the prior conviction for stalking that was used to enhance
his punishment. We disagree.
A. Standard of Review
Before a prior conviction may properly be used to enhance a defendant’s
punishment, the State must prove beyond a reasonable doubt that (1) a prior
conviction exists, and (2) the defendant is linked to that conviction. Henry v. State,
509 S.W.3d 915, 918 (Tex. Crim. App. 2016); Flowers v. State, 220 S.W.3d 919,
921 (Tex. Crim. App. 2007). There is no specific document or mode of proof
required to prove either element. Henry, 509 S.W.3d at 918; Flowers, 220 S.W.3d
at 921. The Court of Criminal Appeals has stated:
There is no “best evidence” rule in Texas that requires that the fact of a prior conviction be proven with any document, much less any specific document. While evidence of a certified copy of a final judgment and sentence may be a preferred and convenient means, the State may prove both of these elements in a number of different ways, including . . . documentary proof (such as a judgment) that contains sufficient information to establish both the existence of a prior conviction and the defendant’s identity as the person convicted. Just as there is more than one way to skin a cat, there is more than one way to prove a prior conviction.
4 Flowers, 220 S.W.3d at 921–22. “Any type of evidence, documentary or
testimonial, might suffice” to prove a conviction. Id. at 922.
The State has the burden to prove the link between the previous conviction
and defendant by putting forth independent evidence showing that the defendant is
the same person named in the previous conviction. See Beck v. State, 719 S.W.2d
205, 210 (Tex. Crim. App. 1986); see also Henry, 509 S.W.3d at 920. Acceptable
evidence includes admitting certified copies of a judgment and sentence and
authenticated copies of Texas Department of Corrections records, including
fingerprints, (commonly known as a “pen packet”) that is supported by expert
testimony identifying the prints as identical to known prints of the defendant. See
Paschall v. State, 285 S.W.3d 166, 174–75 (Tex. App.—Fort Worth 2009, pet.
ref’d). While that may be the preferred and most convenient way to establish a
prior conviction and link it to the defendant, the State may prove these elements in
several different ways, including the defendant’s admission or stipulation or
testimony by a person who was present when the defendant was convicted of the
specified crime who can identify the defendant as that person. Henry, 509 S.W.3d
at 920. When the accused is present in court, the factfinder may compare his
appearance with documentary proof of the conviction that contains photographs or
a detailed physical description of the named person. Flowers, 220 S.W.3d at 925.
5 Regardless of the type of evidentiary puzzle pieces the State offers to prove
the existence of a prior conviction and its link to a defendant, the factfinder
determines if the pieces fit together sufficiently to complete the puzzle. Flowers,
220 S.W.3d at 923; see also Henry, 509 S.W.3d at 919. The trier of fact must
consider the evidence as a whole, as each piece of evidence may provide little
meaning if considered in isolation. Henry, 509 S.W.3d at 919. The factfinder looks
at the totality of evidence admitted concerning the prior conviction to determine
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Opinion issued December 21, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00249-CR NO. 01-22-00250-CR ——————————— JOEY HARPER, Appellant V. STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas Trial Court Case Nos. 1635582 & 1635583
MEMORANDUM OPINION
Appellant Joey Harper appeals his convictions for aggravated assault with a
deadly weapon and felon in possession of a weapon. See TEX. PENAL CODE
§§ 22.02(a)(2), 46.04(a). A jury found him guilty of both crimes. After Harper pleaded not true to a sentencing enhancement, the jury found it true and sentenced
him to 24.5 and 10 years’ imprisonment, respectively. The trial court ordered the
sentences to run concurrently. On appeal, Harper contends that the evidence was
insufficient to support the jury’s finding regarding the sentencing enhancement.
We affirm.
Background
This case concerns a shooting in the parking lot of a 24 Hour Fitness.
Harper, who uses a wheelchair after the loss of his legs, was a member of the gym.
On Father’s Day in 2019, Harper went to the gym’s childcare and attempted to take
a young girl away with him. At the time, he was on the phone with the girl’s
mother. He told the employee monitoring the childcare area that the girl’s mother
gave permission for him to retrieve her daughter. The childcare worker would not
allow him to take the girl. She told him that the gym’s policy is that the person
who brings a child must also pick the child up, and she enforced the policy. While
she was speaking with Harper, the child’s father, Nehemias Olmedo, returned to
get her. Olmedo and his daughter left the childcare area and left the gym.
Olmedo and his daughter went to their car in the parking lot. After he
secured his daughter in her carseat, Olmedo turned around and saw Harper
pointing a gun at him. Olmedo lunged at Harper to get the gun away from him. At
that point, Olmedo realized that Harper had shot him because he had no feeling in
2 his leg. Olmedo fell to the ground, and Harper fell to the ground and out of his
wheelchair. Harper got back in his wheelchair and fled. He was later arrested a few
blocks away. Olmedo was transported to the hospital where surgeons discovered
two bullets in his body.
During the guilt-innocence phase of trial, the trial court admitted into
evidence a certified judgment and sentence naming Joey Harper and convicting
him of stalking. See TEX. PENAL CODE § 42.072. The document included the date
of the offense and conviction, cause number, height, weight, tattoos, hair color, and
eye color. It also contained facial and side profile photographs. The photographs
showed a tattoo on the left cheek. Among other witnesses, the jury heard from the
childcare worker at the gym. She stated that she regularly saw Harper at the gym
and was familiar with him. The childcare worker viewed the exhibit and identified
the person in the photographs as Harper. She also identified Harper in the
courtroom.
The jury found Harper guilty of felon in possession of a weapon and
aggravated assault with a deadly weapon. During the punishment phase of trial,
Harper called Greg Gardner to testify. Gardner testified that Harper had been to
prison for stalking and said he had personal knowledge of the facts of the case. He
also testified that he met Harper in approximately 2009 and that they met after
Harper had been to prison for stalking. The State presented the same judgment and
3 sentence for the same stalking conviction and alleged it as an enhancement to the
aggravated assault with a deadly weapon conviction. The jury found the
enhancement true.
Sufficiency of the Evidence to Support Enhancement Paragraph
In one issue on appeal, Harper contends that the evidence is legally
insufficient to link him to the prior conviction for stalking that was used to enhance
his punishment. We disagree.
A. Standard of Review
Before a prior conviction may properly be used to enhance a defendant’s
punishment, the State must prove beyond a reasonable doubt that (1) a prior
conviction exists, and (2) the defendant is linked to that conviction. Henry v. State,
509 S.W.3d 915, 918 (Tex. Crim. App. 2016); Flowers v. State, 220 S.W.3d 919,
921 (Tex. Crim. App. 2007). There is no specific document or mode of proof
required to prove either element. Henry, 509 S.W.3d at 918; Flowers, 220 S.W.3d
at 921. The Court of Criminal Appeals has stated:
There is no “best evidence” rule in Texas that requires that the fact of a prior conviction be proven with any document, much less any specific document. While evidence of a certified copy of a final judgment and sentence may be a preferred and convenient means, the State may prove both of these elements in a number of different ways, including . . . documentary proof (such as a judgment) that contains sufficient information to establish both the existence of a prior conviction and the defendant’s identity as the person convicted. Just as there is more than one way to skin a cat, there is more than one way to prove a prior conviction.
4 Flowers, 220 S.W.3d at 921–22. “Any type of evidence, documentary or
testimonial, might suffice” to prove a conviction. Id. at 922.
The State has the burden to prove the link between the previous conviction
and defendant by putting forth independent evidence showing that the defendant is
the same person named in the previous conviction. See Beck v. State, 719 S.W.2d
205, 210 (Tex. Crim. App. 1986); see also Henry, 509 S.W.3d at 920. Acceptable
evidence includes admitting certified copies of a judgment and sentence and
authenticated copies of Texas Department of Corrections records, including
fingerprints, (commonly known as a “pen packet”) that is supported by expert
testimony identifying the prints as identical to known prints of the defendant. See
Paschall v. State, 285 S.W.3d 166, 174–75 (Tex. App.—Fort Worth 2009, pet.
ref’d). While that may be the preferred and most convenient way to establish a
prior conviction and link it to the defendant, the State may prove these elements in
several different ways, including the defendant’s admission or stipulation or
testimony by a person who was present when the defendant was convicted of the
specified crime who can identify the defendant as that person. Henry, 509 S.W.3d
at 920. When the accused is present in court, the factfinder may compare his
appearance with documentary proof of the conviction that contains photographs or
a detailed physical description of the named person. Flowers, 220 S.W.3d at 925.
5 Regardless of the type of evidentiary puzzle pieces the State offers to prove
the existence of a prior conviction and its link to a defendant, the factfinder
determines if the pieces fit together sufficiently to complete the puzzle. Flowers,
220 S.W.3d at 923; see also Henry, 509 S.W.3d at 919. The trier of fact must
consider the evidence as a whole, as each piece of evidence may provide little
meaning if considered in isolation. Henry, 509 S.W.3d at 919. The factfinder looks
at the totality of evidence admitted concerning the prior conviction to determine
(1) whether there was a prior conviction, and (2) whether the defendant was the
person convicted. Flowers, 220 S.W.3d at 923; see also Henry, 509 S.W.3d at 919.
“If these two elements can be found beyond a reasonable doubt, then the various
pieces used to complete the puzzle are necessarily legally sufficient to prove a
prior conviction.” Flowers, 220 S.W.3d at 923.
In reviewing the legal sufficiency of the evidence presented at trial, a
reviewing court must view all the evidence in the light most favorable to the State.
Villareal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009). The evidence is
legally sufficient if based on “the totality of the evidence,” the trier of fact could
determine beyond a reasonable doubt that there was a previous conviction and that
the defendant was the one convicted. Flowers, 220 S.W.3d at 923.
6 B. Analysis
On appeal, Harper contends that the State did not offer sufficient proof of his
identity to link him to the stalking conviction because a fingerprint examiner did
not testify that the fingerprints admitted in the pen packet belong to Harper. He
also alleges that the pen packet contained only his name as an identifying factor.
We disagree.
The State alleged in its indictment for aggravated assault that Harper had a
prior felony conviction for stalking from July 19, 2013 in the 180th District Court
of Harris County, Texas in cause number 1334283. The State introduced and the
trial court admitted State’s Exhibit 32, which is a penitentiary packet or “pen
packet.” A pen packet consists of records from the Texas Department of
Corrections or other penal institutions regarding a person’s prior convictions.
State’s Exhibit 32 included a certified copy of a judgment of conviction for
stalking against Joey Harper in cause number 1334283 from the 180th District
Court in Harris County signed on July 19, 2013. The exhibit includes the name,
date of birth, sex, race, hair color, eye color, height, weight, and tattoos of the
person convicted. It describes the tattoos to the left wrist, right forearm, and left
cheek of the person named in the judgment. It also included headshots, taken
straight on and from a profile view. The photographs show a distinct facial tattoo
on the left cheek.
7 During trial, Harper was in the courtroom. The jury could see Harper and
compare his appearance to the photographs in the pen packet. The jury could
observe whether Harper had the same facial tattoos as described and photographed.
The jury could also compare Harper’s appearance to the description of the person
in the pen packet, including name, race, hair color, eye color, age, height, and
weight. See Martin v. State, No. 14-21-00736-CR, 2023 WL 3115779, at *7 (Tex.
App.—Houston [14th Dist.] Apr. 27, 2023, no pet.) (mem. op.) (finding sufficient
evidence to link defendant to prior conviction based on State ID number, name,
date of birth, and personal descriptors); see also Flowers, 220 S.W.3d at 925
(finding sufficient evidence to link defendant to prior conviction when trial court
could compare defendant in person with photograph in driver’s license record and
descriptors found in certified copy of judgment); Dorsett v. State, 396 S.W.2d 115,
116 (Tex. Crim. App. 1965) (finding sufficient evidence to link defendant to prior
conviction when jury had opportunity to observe defendant and determine by
comparison with description in the record, including date of birth, race, hair and
eye color, weight, and height, whether defendant was same person previously
convicted).
Additionally, the childcare worker from the 24 Hour Fitness testified that
she had seen Harper regularly at the gym. She identified him in the courtroom and
identified him as the person in the photographs in the pen packet. Finally, Gardner
8 testified that Harper had been to prison for stalking and that he had been released
by the time they met. While Gardner did not know the exact year that Harper was
incarcerated for stalking, his testimony did not conflict with evidence that Harper
was incarcerated for stalking around 2013, and it fit the puzzle of evidence before
the jury.* See Henry, 509 S.W.3d at 920 (stating that witness that testified that
defendant had been convicted of offense but did not provide date of offense was
insufficient to link defendant to prior conviction but could “serve as one piece of
evidence to be viewed in conjunction with all other pieces”).
The evidence was legally sufficient to show beyond a reasonable doubt that
there was a previous conviction for stalking and that Harper had been convicted.
Flowers, 220 S.W.3d at 923.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly Justice
Panel consists of Justices Kelly, Hightower, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
* Gardner testified that he met Harper in 2009. He also testified that when he met Harper, Harper had been released from prison for stalking. When asked if that meant he had met Harper later than 2009, he responded affirmatively. 9