                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00045-CR



        DANIEL THOMAS BARNES, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 188th District Court
                Gregg County, Texas
              Trial Court No. 48,046-A




      Before Morriss, C.J., Burgess and Stevens, JJ.
              Opinion by Justice Burgess
                                               OPINION
         Daniel Thomas Barnes was convicted of burglary of a habitation in a bench trial. After the

State introduced evidence of prior convictions, the trial court found the State’s enhancement

allegation true, sentenced Barnes to forty years’ imprisonment, and ordered him to pay $2,100.00

for his court-appointed counsel. On appeal, Barnes argues that the evidence is legally insufficient

to support the trial court’s findings that he was guilty of the offense and was the same person who

committed several prior offenses alleged by the State.

         We conclude that legally sufficient evidence supported the trial court’s finding that Barnes

was guilty as a party to the offense of burglary of a habitation. We further conclude that legally

sufficient evidence linked Barnes to a majority of the prior convictions introduced at punishment.

However, we find that Barnes was not linked to two prior Tennessee judgments of conviction by

sufficient evidence. Because we cannot say that we have fair assurance that the Tennessee

convictions did not contribute to his punishment, we reverse Barnes’ sentence and remand for a

new trial on punishment only. 1

I.       Background

         The evidence at trial established that the owner of the burgled home was Michael Minshew.

Minshew’s neighbor, Marlon Hardeman, witnessed a portion of the crime. Hardeman testified that

he almost ran over a Caucasian lady with “streaks of light blue in her hair” as he was leaving for

work. When he returned to the neighborhood with coworkers, he saw the same lady and a small



1
We also note that the trial court assessed $2,100.00 in attorney fees for Barnes’ court-appointed attorney even though
Barnes is indigent.

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Caucasian male, with lightning bolt tattoos on his throat, standing beside Minshew’s Dallas

Cowboy golf cart. The golf cart had “a blanket with . . . a lot of stuff in it just bundled up.”

Hardeman said that a red, four-door car was on the side of the road close to the golf cart. Because

he knew the golf cart was Minshew’s, Hardeman became suspicious, recorded the license plate

number of the red car, and called Minshew before returning to work.

       According to Minshew, Hardeman reported on the phone call that the couple was “loading

things off [his] golf cart into a red car.” Minshew called the police and rushed home to find that

his windows had been beaten in, there was “a hole in [his] back door,” items throughout the home

were destroyed, and blue “2-cycle oil” had been poured all over the home. Minshew noticed that

his family’s social security cards, birth certificates, and passports were stolen, along with the golf

cart, clothes, jewelry, rifles, binoculars, video games, computers, iPhones, iPads, and other

electronics.

       Cedric Davis, a patrol officer with the Longview Police Department (LPD), responded to

Minshew’s call, interviewed Hardeman, and caused dispatchers to issue a warning to police to be

on the lookout for the suspect vehicle Hardeman described. LPD Officer Keven Nichols testified

that officers quickly located a red 2005 Chevrolet Cavalier with a matching license plate in a

nearby park. The Cavalier was packed full of items stolen from Minshew’s home.

       Brent Creacy, another LPD officer, testified that the suspects, Barnes and Cassidy Taylor,

were arrested close by. The trial court saw that Barnes had lightning bolts tattooed on his neck.

According to Creacy, Barnes admitted that the red Cavalier belonged to him. Taylor led Creacy

to the stolen golf cart. Barnes’ fingerprints were found on the red Chevrolet packed with

                                                  3
Minshew’s stolen items, and Barnes referred to the car as his in both his interview with law

enforcement and a recorded conversation with his mother. LPD Investigator Gabriel Downs

testified that Barnes “wanted to make a deal” to protect Taylor, his girlfriend. After hearing this

evidence, the trial court found Barnes guilty of burglary of a habitation as a party to the offense.

II.    Legally Sufficient Evidence Supports Barnes’ Conviction as a Party to the Offense

       Barnes argues that insufficient evidence supported a finding that he entered Minshew’s

home. We disagree because we find that legally sufficient evidence supports the trial court’s

finding that Barnes was guilty as a party to the offense.

       A.      Standard of Review

       In evaluating legal sufficiency of the evidence, we review all of the evidence in the light

most favorable to the trial court’s judgment to determine whether any rational fact-finder could

have found the essential elements of the charged offense. Brooks v. State, 323 S.W.3d 893, 912

(Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine

legal sufficiency under the direction of Brooks, while giving deference to the responsibility of the

fact-finder “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). When faced with conflicting evidence, we presume that the trial court resolved any

such conflict in a way that supports the judgment, and we defer to that resolution. State v. Turro,

867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

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         Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id. Here, the State alleged that Barnes entered a habitation without the

effective consent of the owner, Minshew, with the intent to commit theft. 2

         B.       Party Liability

         Barnes argues that nothing showed he entered Minshew’s home. However, the court found

that Barnes was guilty as a party to the offense. 3 “A person is criminally responsible as a party to

an offense if the offense is committed by his own conduct, by the conduct of another for which he

is criminally responsible, or by both.” TEX. PENAL CODE ANN. § 7.01(a). “A person is criminally

responsible for an offense committed by the conduct of another if[,] . . . acting with intent to

promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts

to aid the other person to commit the offense.” TEX. PENAL CODE ANN. § 7.02(a)(2).

         “While an agreement of the parties to act together in a common design seldom can be

proved by direct evidence, reliance may be had on the actions of the parties, showing by either



2
 A person commits the offense of burglary if, without the effective consent of the owner, the person “enters a
habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony,
theft, or an assault.” TEX. PENAL CODE ANN. § 30.02.
3
 “It is well settled that the law of the parties need not be pled in the indictment.” Williams v. State, 410 S.W.3d 411,
414 (Tex. App.—Texarkana 2013, no pet.) (citing Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App.
2005); Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002)).
                                                           5
direct or circumstantial evidence, an understanding and common design to do a certain act.”

Barnes v. State, 62 S.W.3d 288, 297 (Tex. App.—Austin 2001, pet. ref’d). Thus, circumstantial

evidence may be sufficient to show that a person is a party to the offense. Beardsley v. State, 738

S.W.2d 681, 684 (Tex. Crim. App. 1987). When “determining whether an individual is a party to

an offense and bears criminal responsibility, the court may look to events before, during, and after

the commission of the offense.” Id.

       C.      Analysis
       Barnes argues that the State was required to put forth some proof that he entered Minshew’s

home with Taylor. He is incorrect. See Rollerson v. State, 227 S.W.3d 718, 725–26 (Tex. Crim.

App. 2007). “[A] defendant’s unexplained [exclusive] possession of property recently stolen in a

burglary permits an inference that the defendant is the one who committed the burglary.” Id. at

725 (citing Poncio v. State, 185 S.W.3d 904 (Tex. Crim. App. 2006)). Where the possession of

the stolen property is not exclusive, the permitted inference by the fact-finder is that the person in

possession of the property was a party to the offense, even where there is no evidence that the

person entered the burglarized premises. See Rollerson, 227 S.W.3d at 726.

       “Evidence is sufficient to convict under the law of parties if the defendant is physically

present at the commission of the offense and encourages its commission by words or other

agreement.” Rosillo v. State, 953 S.W.2d 808, 814 (Tex. App.—Corpus Christ 1997, pet. ref’d)

(citing Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on reh’g)). In addition

to the fact that Barnes was found in possession of the stolen property a short time after Minshew




                                                  6
reported the burglary, Hardeman saw Barnes at the scene of the crime with his girlfriend loading

Minshew’s property, which bore his fingerprints, into his car.

        Viewing the evidence in a light most favorable to the verdict, we conclude that legally

sufficient evidence supported the trial court’s finding that Barnes was a party to the offense.

III.    Barnes Was Not Linked to the Tennessee Convictions

        Next, Barnes argues that the evidence was legally insufficient to link him to alleged prior

offenses and, therefore, that the trial court erred in admitting them into evidence at punishment.

        A.      Standard of Review

        “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[4] . . . and (2) the defendant is linked

to that conviction.” Henry v. State, 466 S.W.3d 294, 301 (Tex. App.—Texarkana 2015), aff’d,

509 S.W.3d 915 (Tex. Crim. App. 2016) (quoting Reese v. State, 273 S.W.3d 344, 347 (Tex.

App.—Texarkana 2008, no pet.) (quoting Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App.

2007))). “No specific document or mode of proof is required to prove these two elements.” Id.

(quoting Flowers, 220 S.W.3d at 921). “In proving prior convictions, identity often includes the

use of a combination of identifiers, and ‘[e]ach case is to be judged on its own individual merits.’”

Id. (quoting Littles v. State, 726 S.W.2d 26, 30–32 (Tex. Crim. App. 1984) (op. on reh’g)). “The

totality of the circumstances determines whether the State met its burden of proof.” Id. (citing

Flowers, 220 S.W.3d at 923).


4
 As the Texas Court of Criminal Appeals has recognized, “evidence of a certified copy of a final judgment and
sentence may be a preferred and convenient means” to prove a prior conviction for enhancement purposes. Henry,
509 S.W.3d at 918 (quoting Flowers, 220 S.W.3d at 921).
                                                      7
       “[T]he proof that is adduced to establish that the defendant on trial is one and the same

person that is named in an alleged prior criminal conviction or convictions closely resembles a

jigsaw puzzle.” Flowers v. State, 220 S.W.3d 919, 923 (Tex. Crim. App. 2007) (quoting Human

v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988)). “The pieces standing alone usually have

little meaning.” Id. (quoting Human, 749 S.W.2d at 836). ”However, when the pieces are fitted

together, they usually form the picture of the person who committed that alleged prior conviction

or convictions.” Id. (quoting Human, 749 S.W.2d at 836). The trier of fact is required to fit the

pieces of the jigsaw puzzle together and weigh the credibility of each piece. Id. “Regardless of

the type of evidentiary puzzle pieces the State offers to establish the existence of a prior conviction

and its link to a specific defendant, the trier of fact determines if these pieces fit together

sufficiently to complete the puzzle.” Id. If the existence of the conviction and its link to the

defendant 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.” Id. “The standard of review

for evaluating the sufficiency of evidence requires that the appellate court ‘consider all the

evidence in the light most favorable to the trial court’s finding.’” Henry, 509 S.W.3d at 919

(quoting Wood v. State, 486 S.W.3d 583, 589 (Tex. Crim. App. 2016)).

       B.      Analysis

       The evidence at trial established Barnes’ birthdate, social security number, and Texas state

identification (ID) number. Barnes complains of the State’s use of Exhibits 18–24. The record

established that: (1) Exhibit 18, a certified copy of a judgment from Missouri against “Daniel T



                                                  8
Barnes,” was linked to Barnes by name and birthdate; 5 (2) Exhibit 19, a certified copy of an Illinois

judgment against “Daniel T Barnes,” was linked to Barnes by a felony complaint bearing the same

cause number, which depicted Barnes’ birthdate and social security number; (3) Exhibit 20,

certified copies of a Panola County order of deferred adjudication, judgment revoking community

supervision, and judgment of conviction entered against “Daniel Thomas Barnes,” were linked to

Barnes by name and Texas state ID number; (4) Exhibit 21, a certified copy of a judgment of

conviction from Gregg County entered against “Daniel Thomas Barnes,” was linked to Barnes by

name and Texas state ID number; and (5) Exhibit 24, a certified copy of a Gregg County judgment

against “Daniel Thomas Barnes,” was linked to Barnes by name and date of birth. 6 We find that

based on this evidence, a reasonable fact-finder could conclude that Barnes was the person

convicted of the prior offenses in Exhibits 18–21 and 24.

            However, Exhibits 22 and 23, which were Tennessee “General Sessions Disposition[s],”

were not sufficiently linked to Barnes. The Tennessee judgments showed that “Daniel Thomas

Barnes” was placed on supervised probation for theft and forgery offenses. They were linked to

Barnes only by name and signature. There was no testimony from the sponsoring witness

regarding a signature analysis or any other factors that could link Barnes either to the State of

Tennessee or the Tennessee judgments.

            Unless the defendant’s name is unique, a name and signature are insufficient by themselves

to link a defendant to a prior conviction. Strehl v. State, 486 S.W.3d 110, 114 (Tex. App.—


5
  The social security number on the paperwork comprising Exhibit 18 was one number off from Barnes’ social security
number.
6
    Although some of the exhibits contained thumbprints, no fingerprint analysis was conducted.
                                                           9
Texarkana 2016, no pet.) (“Evidence that the defendant merely has the same name as the person

previously convicted is not sufficient to satisfy the prosecution’s burden.”) (citing Beck v. State,

719 S.W.2d 205, 210 (Tex. Crim. App. 1986)); see Cain v. State, 468 S.W.2d 856, 859 (Tex. Crim.

App. 1971), overruled on other grounds by Littles v. State, 726 S.W.2d 26 (Tex. Crim. App. 1984)

(“We conclude that under the circumstances of this case, where handwriting samples are

introduced without expert testimony and the [fact-finder] alone must make the comparison, and

there is no other evidence to connect the appellant with the prior convictions, such identity has not

been sufficiently established.”); Prihoda v. State, 352 S.W.3d 796, 810 (Tex. App.—San Antonio

2011, pet. ref’d); see also Henry v. State, 509 S.W.3d 915, 919 (Tex. Crim. App. 2016) (“even if

the name on the judgment matched that of the defendant, a certified judgment on its own is

insufficient” to link the defendant to the prior offense); Smith v. State, 489 S.W.2d 920, 922 (Tex.

Crim. App. 1973); Rosales v. State, 867 S.W.2d 70, 74 (Tex. App.—El Paso 1993, no pet.) (trial

court erred in admitting prior judgment based on signature comparison). 7

         In Benton v. State, we found that a jury was free to compare signatures on prior convictions

with the defendant’s known signature in order to determine whether the State sufficiently linked

the defendant to the prior judgments where other evidence, like a unique name, date of birth, and

listing of the defendant’s mother’s name on the judgments, also linked the defendant to the prior

offenses. Benton v. State, 336 S.W.3d 355, 357, 358 (Tex. App.—Texarkana 2011, pet. ref’d).

This is not such a case. Because Barnes’ only link to the prior Tennessee judgments are his


7
  The State asked the trial court to take judicial notice of its file and compare Barnes’ signature on the Tennessee
judgments to the file because the State was “pretty sure that Mr. Barnes’ signature [showed] up somewhere in there.”
However, the trial court did not indicate that it took notice of its file, and “the record does not reflect that the trial
judge made an actual comparison of the signatures.” Prihoda, 352 S.W.3d at 809.
                                                           10
relatively common name and a signature, we find that the State did not meet its burden to prove

that Barnes was the person who had committed the prior Tennessee offenses. Therefore, we

sustain Barnes’ complaint.

       C.      Barnes Was Harmed by the Admission of the Tennessee Offenses

       “The erroneous admission of extraneous-offense evidence is not constitutional error.”

James v. State, 555 S.W.3d 254, 261 (Tex. App.—Texarkana 2018, pet. dism’d, untimely filed)

(quoting Graves v. State, 452 S.W.3d 907, 914 (Tex. App.—Texarkana 2014, pet ref’d)). “Rule

44.2(b) of the Texas Rules of Appellate Procedure provides that an appellate court must disregard

a nonconstitutional error that does not affect a criminal defendant’s ‘substantial rights.’” Id.

(quoting TEX. R. APP. P. 44.2(b)). “An error affects a substantial right of the defendant when the

error has a substantial and injurious effect or influence on the jury’s verdict.” Id. (quoting Graves,

452 S.W.3d at 914). “We will not reverse based on nonconstitutional error if, after we look at the

whole record, we conclude that there is ‘fair assurance that the error did not influence the [fact-

finder], or had but a slight effect.’” Id. (quoting Graves, 452 S.W.3d at 914).

       “A harm analysis may include overwhelming evidence of guilt.” Id. Here, we begin our

analysis with the assumption that Barnes’ evidence of guilt was overwhelming. His second-degree

offense for burglary of a habitation was punishable in the first-degree felony range as a result of

the trial court’s finding of true to the State’s enhancement allegation. Thus, Barnes could have

been sentenced “for life or for any term of not more than 99 years or less than 5 years.” TEX.

PENAL CODE ANN. § 12.32(a). Barnes was sentenced to forty years’ imprisonment. At first blush,




                                                 11
it appears that Barnes’ Tennessee convictions could have had but a slight effect on his sentence.

Yet, the record indicates otherwise.

       None of Barnes’ prior offenses of forgery, theft, possession of drugs, and criminal trespass

were violent in nature. In assessing punishment, the trial court said,

       [T]his case basically comes down to the offense itself, Mr. Barnes, and your prior
       -- prior record. I do agree with [your counsel] that rehab would be beneficial for
       you, that you were probably on drugs when this offense was committed. The
       problem is I see that you’ve had other chances before, and other states have given
       you chances and you still maintain you’re on -- probably still on drugs.

These comments indicate that the trial court did, in fact, consider the Tennessee judgments and

that they may have affected Barnes’ punishment. Because we are not assured that the Tennessee

judgments did not influence the trial court, or had but a slight effect, we reverse the trial court’s

judgment on punishment and remand the cause for a new punishment hearing.

IV.    Conclusion

       We sustain Barnes’ complaint that the State failed to sufficiently link him to the Tennessee

judgments admitted during punishment. While we affirm the judgment of conviction, we reverse

the trial court’s judgment as to punishment and remand the cause for a new punishment hearing.

See TEX. CODE CRIM. PROC. ANN. art. 44.29(b).




                                              Ralph K. Burgess
                                              Justice

Date Submitted:        September 10, 2019
Date Decided:          September 25, 2019

Publish
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