                                 In The
                            Court of Appeals
                   Seventh District of Texas at Amarillo
                            ________________________

                                 No. 07-17-00313-CR
                            ________________________

                      JAMES RICHARD OCANAS, APPELLANT

                                          V.

                           STATE OF TEXAS, APPELLEE



                         On Appeal from the 108th District Court
                                   Potter County, Texas
         Trial Court No. 72,105-E; Honorable Abe Lopez, Presiding by Assignment


                                   September 6, 2018

                          MEMORANDUM OPINION
                    Before CAMPBELL, PIRTLE, and PARKER, JJ.


      Appellant, James Richard Ocanas, was convicted by a jury of the offense of

possession of a controlled substance, namely, methamphetamine, in an amount of one
gram or more but less than four grams,1 enhanced by two prior felony convictions,2 and

was sentenced to a period of incarceration for thirty years. By three issues he contends

(1) the evidence was insufficient to support his conviction, (2) the State failed to prove

that he was the same person convicted in either of the two enhancement counts, and (3)

the enhancement allegation alleging a conviction in Randall County was not supported

by the evidence. We affirm.


       BACKGROUND

       Appellant was arrested for the offense of possession of a controlled substance

(methamphetamine, one to four grams) on May 6, 2016. His indictment alleged a single

felony conviction as an enhancement—Conspiracy to Commit Murder, Cause Number

32,896-A, 47th District Court, Potter County, Texas, August 6, 1993. The State later filed

a Notice of State’s Intent to Use Prior Conviction for Enhancement of Punishment alleging

two felony convictions: (1) Conspiracy to Commit Murder, Cause Number 32,896-A, 47th

District Court, Randall County, Texas, August 6, 1993; and (2) Possession of a Controlled

Substance, Cause Number 16,005-C, 251st District Court, Randall County, Texas, June

20, 2005.


       On July 24, 2017, Appellant’s case was called for trial before the Honorable Abe

Lopez, presiding by assignment. Prior to beginning voir dire, Judge Lopez introduced the

parties to the venire panel, specifically identifying Appellant. Upon completion of voir dire,




       1   TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2017).
       2  As enhanced the offense was punishable by confinement for any term of not more than 99 years
or less than 25 years. TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2017)

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the petit jury was duly sworn and Appellant entered a plea of “not guilty” to the indictment.

The proceedings were recessed for the day.


       The next morning, trial reconvened for the purpose of beginning presentation of

testimony.   Appellant, however, failed to appear.       After some delay, Judge Lopez

announced the trial would proceed and that Appellant would be tried “in abstentia.” During

trial, Amarillo Police Officer Kavoza Robinson testified he stopped Appellant for an

equipment violation on his vehicle. During that stop, Appellant verbally provided his

name, date of birth, and social security number. An in-car video of the encounter was

admitted providing visual and audio images of Appellant. Also admitted was a photo of

Appellant sitting in the back seat of a patrol car taken by Officer Robinson on the night of

the arrest. Testimony from a forensic scientist with the Texas Department of Public Safety

established that material found in Appellant’s possession was 1.30 grams of a substance

that contained methamphetamine. At the conclusion of testimony, the jury was duly

charged and subsequently returned a verdict of guilty.


       The court proceeded to the punishment phase of trial. As the prosecutor began to

read the enhancement allegations, the court called counsel to the bench to discuss a

discrepancy between the indictment and the notice of enhancement allegations

concerning the correct county of conviction in Cause Number 32,896-A. The indictment

alleged Potter County, while the notice alleged Randall County (ultimately, evidence

would establish that the correct county was Potter County). A confusing discussion

followed a bench conference, ending with the prosecutor stating: “We’ll make a trial

correction to that Notice, Your Honor. In the August 6th, 1993, Cause Number 32,896-A,

the 47th District, that should be Randall County, Your Honor, for the conspiracy to commit

                                             3
murder, instead of Potter County.”       Judge Lopez then responded, “I’ve made the

correction in the indictment . . . .” The record, however, reflects that no interlineation or

change was ever made to the indictment or the notice.


       Defense counsel entered a plea of “not true” on behalf of Appellant. Evidence was

presented, including two exhibits containing certified copies of multiple prior convictions.

When the Court’s Charge on Punishment was presented to the jury, the jury was asked

to determine, beyond a reasonable doubt, whether Appellant had previously been

convicted of “Conspiracy to Commit Murder in cause number 32,896-A of the 47th District

Court of Potter County, Texas on the 6th day of August, 1993.”                Finding both

enhancement allegations to be true, the jury assessed Appellant’s sentence at thirty years

confinement in the Institutional Division of the Texas Department of Criminal Justice. This

appeal followed.


       STANDARD OF REVIEW

       The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010). In determining whether the evidence is legally sufficient to

support a conviction, a reviewing court considers all the evidence in the light most

favorable to the verdict and determines whether, based on that evidence and reasonable

inferences to be drawn therefrom, a rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616,

622 (Tex. Crim. App. 2017).

                                             4
       As to guilt or innocence, the jury is the sole judge of the credibility of the witnesses

and the weight to be given to their testimonies, and as a reviewing court we must defer

to those determinations and not usurp its role by substituting our judgment for that of the

jury. Id. (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012)). The

duty of a reviewing court is simply to ensure that the evidence presented supports the

fact finder’s verdict and that the State has presented a legally sufficient case of the offense

charged. Id. When a reviewing court is faced with a record supporting contradicting

conclusions, the court must presume the fact finder resolved any such conflicts in favor

of the verdict, even when not explicitly stated in the record. Id. “Under this standard,

evidence may be legally insufficient when the record contains no evidence of an essential

element, merely a modicum of evidence of one element, or if it conclusively establishes

a reasonable doubt.” Id. (quoting Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App.

2013)).


       ANALYSIS

       By his first issue, Appellant contends the evidence is insufficient to support his

conviction because there is no evidence identifying him as the person who committed the

offense. Appellant contends his conviction should be reversed and an acquittal ordered

because no one testified that he was the same person stopped by Officer Robinson on

the night of May 6, 2016. Because Appellant does not contest any other elements of the

offense, the only issue we must determine is whether a rational jury could have found,

beyond a reasonable doubt, that Appellant was the defendant named in the indictment

and that he was the person who committed the offense alleged.




                                              5
       The absence of a formal, in-court identification of the accused does not render the

evidence insufficient to establish identity as a matter of law. See Adams v. State, 418

S.W.3d 803, 810 (Tex. App.—Texarkana 2013, pet. ref’d) (defendant absented from

courtroom, by order of the court, during presentation of testimony due to his disruptive

conduct). Identity may be established by either direct or circumstantial evidence and the

reasonable inferences that may be drawn therefrom. Id.


       While pretrial introductions and voir dire examinations are not evidence, the jury is

not required to leave its common sense at the courthouse door when it reports for jury

duty. Statements made during voir dire have been considered in analyzing the sufficiency

of identifying evidence.      See Purkey v. State, 656 S.W.2d 519, 520 (Tex. App.—

Beaumont 1983, pet. ref’d). In Purkey, the Beaumont Court found that in the context of

the trial as a whole, including consideration of voir dire, there could be no doubt but that

in the minds of the jurors the witnesses were referring to the defendant in their

testimonies, even though there was no in-court identification of the defendant as the

perpetrator of the offense.


       Here, Appellant was introduced to the jury panel by the trial judge and he entered

his plea of “not guilty” before the petit jury. During this time, the jurors were able to

observe him. At trial, they were presented with a video depiction of the defendant’s

encounter with Officer Robinson and a photograph of him sitting in the back seat of the

patrol car. They also heard testimony about the defendant’s self-identification by name,

date of birth, and social security number. Deferring to the jurors’ roles as the exclusive

fact finders, we cannot say the record contains no evidence of identity, merely a modicum

of evidence of that element, or that it conclusively establishes a reasonable doubt.

                                             6
Therefore, based on this record, we find a rational trier of fact could have found Appellant

to be the defendant named in the indictment and that he was the person who committed

the offense alleged. Issue one is overruled.


       Similar to his first issue, in his second issue Appellant contends the State failed to

prove that he was the same person convicted in either of the two enhancement counts

which the jury found to be true. Appellant’s argument is simple—because the State

offered no fingerprint identification of the defendant, it had no fingerprints to compare to

pen packets offered into evidence. Appellant basically contends there is no evidence to

prove that he was the same person whose judgments of conviction were admitted into

evidence.


       Contrary to the position being taken by Appellant, for purposes of an enhancement

allegation, the State is not required to prove through the use of fingerprints that the person

named in a judgment of conviction is the same person as the person on trial. While that

may be a convenient and common way of establishing that fact, by no means is it the only

way of doing it. For purposes of an enhancement, the State is required to prove beyond

a reasonable doubt that (1) a prior conviction exists and (2) the defendant on trial is linked

to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). There

is no “best evidence” rule in Texas that requires that a prior conviction be proven by any

particular document or species of evidence. Id.


       Here, each pen packet introduced contained a copy of the judgment of conviction,

photos of the defendant, and an identification card stating the defendant’s name, date of

birth, and social security number. Based on the evidence presented at trial, a rational


                                              7
trier of fact could have found Appellant to be the same person convicted in both of the

enhancement counts which the jury found to be true. Issue two is overruled.


       By his third issue, Appellant contends the enhancement allegation alleging

Appellant was convicted in Cause Number 32,896-A in Randall County, Texas, was not

supported by the evidence. Appellant’s argument can only be explained as confusion

created by a mistake on the prosecutor’s part, compounded by a confusing bench

conference, further compounded by inadequate briefing, and ultimately resolved by the

absence of any error in the first place.


       In the final analysis, the Court’s Charge on Punishment asked the jury to determine

if Appellant had previously been convicted of “Conspiracy to Commit Murder in cause

number 32,896-A of the 47th District Court of Potter County, Texas on the 6th day of

August, 1993.”3 The evidence at trial showed that James Richard Ocanas, was convicted

of Conspiracy to Commit Murder, in Cause Number 32,896-A, in the 47th District Court

in and for Potter County, Texas, on August 6, 1993, and the jury answered that question

in the affirmative in its verdict. There being no error as alleged, issue three is overruled.


       CONCLUSION

       The judgment of the trial court is affirmed.




                                                               Patrick A. Pirtle
                                                                    Justice

Do not publish.

       3 While there was a conflict between the indictment and the notice of enhancements, no objection
to the Charge of the Court was made and no issue on that question has been raised.

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