Matias Hernandez A/K/A Matias Hernandez, Jr. v. State

CourtCourt of Appeals of Texas
DecidedMay 25, 2006
Docket02-05-00161-CR
StatusPublished

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Bluebook
Matias Hernandez A/K/A Matias Hernandez, Jr. v. State, (Tex. Ct. App. 2006).

Opinion

                                      COURT OF APPEALS

                                       SECOND DISTRICT OF TEXAS

                                                   FORT WORTH

                                        NO.  2-05-161-CR

MATIAS HERNANDEZ A/K/A                                                 APPELLANT

MATIAS HERNANDEZ, JR.

                                                   V.

THE STATE OF TEXAS                                                                STATE

                                              ------------

            FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

                                MEMORANDUM OPINION[1]


A jury convicted Appellant Matias Hernandez of felony driving while intoxicated, found an enhancement allegation to be Atrue,@ and assessed punishment at eighteen years= imprisonment and a $2,000 fine.  The trial court entered judgment accordingly.  In five points on appeal, Appellant complains that the trial court erred by admitting evidence of several other offenses and convictions at the punishment phase of trial and that the evidence was legally and factually insufficient to support the jury=s verdict as to punishment.  We affirm.

                                            Background

Appellant was indicted for driving while intoxicated, and the indictment alleged four prior DWI convictions.  The case was tried to a jury.  None of Appellant=s points arise from the guilt/innocence phase of trial, so it will suffice to say that the jury found him guilty as charged in the indictment. 

During the punishment phase of trial, the State offered, and the trial court admitted, records pertaining to thirteen prior convictions.  Appellant=s points all arise from these records, so we will examine them and the procedural history leading up to their admission in detail.


Three months before trial, Appellant properly filed a request for notice of extraneous offenses to be used for enhancement under article 37.07(3)(g) and rule of evidence 404(b).  See Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(g) (Vernon Supp. 2005); Tex. R. Evid. 404(b).  Eleven days before trial, the State filed a notice of intent to use a single prior conviction for burglary to enhance punishment.  Six days before trial, the State faxed a letter to Appellant=s counsel listing sixteen convictions that the State intended to offer in addition to the four prior DWIs alleged in the indictment and the burglary disclosed in the prior notice.  Three of the sixteen convictions were for DWI, seven were for driving with a suspended license, one was for assault-family violence, one was for aggravated assault, one was for possession of marijuana, and two were listed as Aoffense unknown.@  By letter dated the day before trial, the State notified Appellant=s counsel that one of the two Aoffense unknown@ convictions was for DWI. 

At a pretrial hearing on the day of trial, Appellant objected to the State=s notices as untimely and inadequate.  The trial court deferred ruling on the objections until the punishment phase of trial.  At the beginning of the punishment phase, Appellant again objected to the notice as untimely.  The trial court ruled that the notice was timely.  The State then put on a fingerprint expert, who testified that Appellant=s fingerprints matched the fingerprint records in State=s exhibits 9 through 15.  When the State offered exhibits 9 through 15, Appellant again objected that the State=s notice was untimely, and the trial court again overruled his objection.


The State then offered exhibits 16 through 22, all of which were prior-conviction records but none of which contained fingerprint evidence.  Exhibits 16 and 17 pertain to the burglary conviction alleged by the State to enhance Appellant=s punishment.  Appellant made various objections to the records, some of which are made the basis of this appeal and all of which were overruled by the trial court.  Ultimately, the trial court admitted all of the prior-conviction records.

                                             Discussion

1.     Did the State provide reasonable notice of its intent to offer evidence of prior convictions?

In his first point, Appellant argues that the trial court erred by admitting the prior-conviction records at punishment because the State=s notice of intent to use those records was untimely as to all and deficient as to some.  The State responds that the notice was reasonable because Appellant has not demonstrated surprise.

The prior-conviction records of which Appellant complains fall into two categories. 

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