Littles v. State

726 S.W.2d 26, 1987 Tex. Crim. App. LEXIS 542
CourtCourt of Criminal Appeals of Texas
DecidedMarch 11, 1987
Docket301-83
StatusPublished
Cited by203 cases

This text of 726 S.W.2d 26 (Littles v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Littles v. State, 726 S.W.2d 26, 1987 Tex. Crim. App. LEXIS 542 (Tex. 1987).

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This is an appeal from an aggravated robbery conviction. The jury found the appellant guilty and that the allegations of two prior felony convictions were “true.” The court assessed punishment at life imprisonment in accordance with V.T.C.A., Penal Code, § 12.42(d) (in effect at the time).

On appeal the appellant, inter alia, contended that the State failed to prove he was the same person allegedly convicted of the second prior felony conviction set forth in the indictment. On this ground the Houston Court of Appeals [1st Dist.] reversed the conviction and remanded the cause to the trial court. Littles v. State (No. 01-82-0107CR — February 24, 1983). We granted the State’s petition for discretionary review to determine the correctness of the decision below.

In addition to the primary offense of aggravated robbery, the indictment alleged that appellant had been previously convicted on May 18, 1970 of burglary in Cause No. 145613 in the 179th District Court of Harris County, and that he had also been convicted on July 22, 1971 of the felony offense of intentionally and knowingly failing to appear in District court in Cause No. 158177 in the 209th District Court of Harris County.

At the penalty stage of the trial the State called Juan Jorge of the Identification Division, Harris County Sheriff’s office who was qualified as a fingerprint expert. Jorge testified that known fingerprints of the appellant which he had personally taken from the appellant were identical with the fingerprints found in the pen packets, State’s exhibits 7 and 8. It was his opinion that the prints were made by the same person. State’s exhibit 7 referred to the prior burglary conviction in Cause No. 145613 alleged as the first prior conviction. It contained the certified copies of the judgment and sentence, photographs, fingerprints, physical description, etc., under the certification of the Records Clerk of the Texas Department of Corrections. State’s exhibit 8 referred to the felony conviction for failure to appear in Cause No. 258177, the second alleged prior conviction. It likewise contained certified copies of the judgment, sentence, photographs, fingerprints, etc., under the same certification as exhibit 8.

When State’s exhibits 7 and 8 were offered into evidence by the State, the appellant objected to the admission of the fingerprint page of exhibit 8 on the ground that such page on its face expressly referred to a theft conviction with a different cause number than the failure to appear conviction. The prosecution withdrew the fingerprint page which also included a physical description and offered the pen packet, exhibit 8, sans any reference to fingerprints or physical description. Thereafter State’s exhibits 7 and 8 were admitted into evi[28]*28dence over objection that exhibit 8 was insufficient to prove appellant was the same person previously convicted as alleged regarding the second prior conviction. Although the alleged second prior conviction occurred in Harris County in 1977, the State made no effort to offer other testimony to prove the appellant was the same person convicted.

Both sides rested and closed and the court submitted the issues of whether the appellant was the same person so previously convicted as alleged in the indictment, and the jury was instructed on the burden of proof.

The jury returned its verdict finding, inter alia, “that the allegations in Enhancements paragraphs one and two of the indictment are ‘true.’ ”

On appeal the Court of Appeals reversed citing Gollin v. State, 554 S.W.2d 683 (Tex.Cr.App.1977), and Daniel v. State, 585 S.W.2d 688 (Tex.Cr.App.1979). It held that exhibit 8, standing alone, was insufficient to show the appellant was the person so previously convicted of the alleged second prior conviction.

It has been said that statutes such as Y.T.C.A., Penal Code, § 12.42(d), create no offense, but merely authorize increased punishment to be affixed to subsequent convictions. The provisions are reformatory in nature and must be strictly construed. Ex parte Davis, 412 S.W.2d 46, 51 (Tex.Cr.App.1967).

The State has the burden of proof concerning the prior convictions alleged for the purpose of enhancement of punishment, and the standard of proof is beyond a reasonable doubt. Ex parte Augusta, 639 S.W.2d 481 (Tex.Cr.App.1982). This burden, inter alia, includes proving that the defendant is the same person convicted of the prior felony which will serve to provide predicate for enhancement of punishment. Rios v. State, 557 S.W.2d 87 (Tex.Cr.App. 1977).

There are, of course, a number of methods by which the State may properly prove the prior convictions alleged for the purpose of enhancement of punishment. Some have been listed and discussed in Cain v. State, 468 S.W.2d 856 (Tex.Cr.App. 1971), and Daniel v. State, supra. These, of course, are not exclusive. One method, and perhaps the most popular with prosecutors because it is the easiest, is the introduction of certified copies of the judgment and sentence and the record of the Texas Department of Corrections or county jail including fingerprints supported by the testimony of an expert witness identifying those prints as identical with known prints of the accused. Rios v. State, 557 S.W.2d 87 (Tex.Cr.App.1977); Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977); Alvarez v. State, 536 S.W.2d 357 (Tex.Cr.App.1976); Blake v. State, 468 S.W.2d 400 (Tex.Cr.App.1971); Babcock v. State, 473 S.W.2d 941 (Tex.Cr.App.1971); Vessels v. State, 432 S.W.2d 108 (Tex.Cr.App.1968).

In the instant case, the prosecutor pursued this method and sufficiently proved the first prior felony conviction alleged by use of exhibit 7 (the pen packet) and the testimony of the fingerprint expert. However, with the withdrawal by the prosecutor of the fingerprint page (including physical description) of exhibit 8, the question is whether the evidence remaining was sufficient to prove the second prior felony conviction alleged.

The withdrawal of the fingerprint page of the said exhibit rendered the fingerprint expert’s testimony regarding the same immaterial. All that remained of the exhibit was the certified copies of the judgment and sentence, the photographs (front and side views) and the certification page. Was this enough to prove the second prior conviction as alleged?

The certified copies of the judgment and sentence standing alone are not sufficient to prove the allegations, Franklin v. State, 154 Tex.Cr.R.

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Cite This Page — Counsel Stack

Bluebook (online)
726 S.W.2d 26, 1987 Tex. Crim. App. LEXIS 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/littles-v-state-texcrimapp-1987.