Affirmed as Reformed and Memorandum Opinion filed October 20, 2011.




                                         In The

                          Fourteenth Court of Appeals
                                 ___________________

                                  NO. 14-10-00976-CR
                                 ___________________

                        JOSE REFUGIO FLORES, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 209th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1211058


                        MEMORANDUM OPINION

       Appellant Jose Refugio Flores was convicted of aggravated assault of a family
member. The trial court found an enhancement paragraph true and assessed punishment at
twenty-five years’ imprisonment. In two issues, appellant argues that (1) the trial court
erred by admitting into evidence an out-of-state penitentiary packet (or ―pen packet‖), and
(2) assuming the pen packet were properly admitted, the evidence is insufficient to prove
the final conviction alleged in the enhancement paragraph. We affirm.
                                         BACKGROUND

        Appellant was charged by indictment in December 2008, after threatening to kill his
wife with a knife. The indictment contained an enhancement paragraph, alleging that ―on
JUNE 21, 1979, in Cause No. 77I40270, CRIMINAL DIVISION DISTRICT NO. 4 of
COOK COUNTY, ILLINOIS, the Defendant was convicted of the felony of
ATTEMPTED MURDER.‖ During the punishment stage of trial, appellant pleaded ―Not
True‖ to the enhancement allegation.1

        As proof of the prior conviction, the State offered into evidence an Illinois pen
packet, consisting of the following documents: (1) a statement from the Office of the
State’s Attorney, indicating that appellant had been charged with attempted murder and
sentenced to eight years in the Illinois Department of Corrections; (2) an Official
Statement of Facts, signed by the Assistant State’s Attorney, which briefly alleged that
appellant shot a man four times following an oral dispute; (3) an Order of Sentence and
Commitment, transferring appellant to the state penitentiary from the Cook County Jail;
(4) a corrected Order of Sentence and Commitment, ordering appellant to serve, in
concurrent terms, seven years for attempted murder and two years for aggravated battery;
and (5) an Order for Discharge from the Prisoner Review Board, dated March 21, 1984,
memorializing appellant’s release from prison on August 27, 1982. All five documents
referenced the same charge and cause number alleged in the enhancement paragraph.

        Appellant objected to the admission of the pen packet, arguing that it was ―hearsay‖
and that it failed to meet ―the proper requirements of the Business Records act.‖ The
prosecutor clarified that he was offering the pen packet as certified documents, rather than
business records, and that the pen packet contained a Certification of Records. Appellant
renewed his objection, contending that the documents were not ―properly certified nor do



        1
          The trial court’s judgment reflects, apparently through clerical error, that appellant pleaded
―True‖ instead.
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they have any fingerprints to show it was this defendant.‖ The objection was overruled and
the pen packet admitted.

       The complainant below, who had since divorced appellant by the time of trial,
testified that she was married to appellant in 1979 when he ―shot a gentleman‖ in Illinois.
She testified that appellant stood for trial, although she did not attend the proceedings. She
further stated that appellant left for Mexico before he could be sentenced, and upon his
eventual return, he was sent to prison. He served three years and five months, having been
released early for good conduct. The complainant also produced four family photos, taken
on her visits to prison, in which appellant is shown wearing a prison uniform bearing his
name and prisoner identification number. Appellant is referenced by that same
identification number in the pen packet’s Order for Discharge.

       Testifying on his own behalf, appellant admitted that he was present at the scene of
the attempted murder, but he denied any involvement in the offense. Appellant testified
that he pleaded not guilty to the charge and that he was sentenced in absentia. When shown
a copy of the pen packet, appellant conceded that the conviction for attempted murder
applied to him.

                                  ISSUES PRESENTED

       In his first issue, appellant argues that the trial court erred by admitting the pen
packet into evidence because it did not contain a properly certified judgment and sentence.
In his second issue, appellant contends that even if the pen packet were properly admitted,
the evidence is insufficient to prove beyond a reasonable doubt that appellant was finally
convicted of the prior offense.

                                      PEN PACKET

       Appellant first challenges the admissibility of the pen packet, which he contends
was defective for lack of a properly certified judgment and sentence. In support of this
argument, appellant cites Langston v. State and Banks v. State, which both hold that a pen

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packet must contain a judgment and sentence, properly certified, in order to be considered
as evidence of a final conviction. Langston v. State, 776 S.W.2d 586, 587 (Tex. Crim. App.
1989); Banks v. State, 158 S.W.3d 649, 652 (Tex. App.—Houston [14th Dist.] 2005, pet.
ref’d).

          We begin by noting that appellant has failed to preserve error. Before a party may
present a complaint for appellate review, the record must show that the complaint was
brought to the attention of the trial court by a timely request, objection, or motion. Tex. R.
App. P. 33.1. The grounds of the complaint must be stated ―with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds were apparent from
the context.‖ Id. An appellate court’s review is limited to the arguments, information, and
evidence presented to the trial court at the time of its ruling, and thus, error is forfeited
when the complaint on appeal differs from the complaint at trial. Dragoo v. State, 96
S.W.3d 308, 313 (Tex. Crim. App. 2003); McGinn v. State, 961 S.W.2d 161, 166 (Tex.
Crim. App. 1998).

          Appellant complains of an issue he did not specifically argue in the court below.
During trial, appellant objected to the admission of the pen packet for various reasons,
including (1) that it was hearsay; (2) that it did not qualify under the business records
exception to the hearsay rule; (3) that it was not properly certified; and (4) that it lacked a
record of fingerprints. The record does not show that appellant ever objected to the pen
packet on the grounds that it did not contain a judgment and sentence. Because error was
not preserved below, we hold that appellant may not raise this argument for the first time
on appeal. See Burks v. State, 876 S.W.2d 877, 908 (Tex. Crim. App. 1994) (―An objection
stating one legal basis may not be used to support a different legal theory on appeal.‖).

          Even if we were to assume that error had been preserved, we would still conclude
that the pen packet was properly admitted.

          We review the trial court’s decision regarding the admissibility of evidence for an
abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);
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Morris v. State, 67 S.W.3d 257, 262 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).
Under this standard, the trial court’s decision will not be disturbed unless it lies clearly
outside the zone of reasonable disagreement. Theus v. State, 845 S.W.2d 874, 881 (Tex.
Crim. App. 1992).

       When an out-of-state pen packet is offered to prove the existence of a prior criminal
record, the State must either offer proof of the other state’s evidentiary requirements or
request that the trial court take notice of those requirements. Martin v. State, 227 S.W.3d
335, 337 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In the absence of such proof or
request, we presume that the other state’s law is congruent with Texas law regarding the
sufficiency of the evidence to prove the final conviction. Banks, 158 S.W.3d at 649.
Because the record in this case is silent on the issue of Illinois law, we apply Texas
standards to determine whether the State proved that appellant had a prior conviction for a
reportable offense.

       Under Langston and Banks, a pen packet is admissible as evidence of a prior
conviction if the pen packet contains either (1) a properly certified judgment and sentence,
or (2) the ―the functional equivalent of the judgment and sentence required by Texas law.‖
Langston, 776 S.W.2d at 587–88; Banks, 158 S.W.3d at 652. A pen packet may contain the
functional equivalent of a judgment and sentence if its enclosed documents are properly
authenticated and representative of a final conviction. See Martin v. State, 227 S.W.3d 335,
337 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Banks, 158 S.W.3d at 652–53.

       The pen packet in this case contains a document from the Office of the State’s
Attorney indicating that appellant was sentenced on June 21, 1979 to eight years’
imprisonment for the charged offense of attempted murder. The Order of Sentence and
Commitment, in both its original and corrected versions, is signed by the judge and
identifies the sentencing court. The pen packet further reflects that appellant was
transferred to the state penitentiary and discharged on either parole or mandatory
supervised release on August 27, 1982.
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       Courts have previously held that a pen packet is not representative of a final
conviction where the State has failed to prove the authenticity of its documents or where
the record contains some indication that the judgment or sentence is pending or on appeal.
See Langston, 776 S.W.2d at 588 (observing that a pen packet was not representative of a
final conviction where it lacked a judgment and sentence and contained an order for
defendant to be transferred to determine whether a probation or other modification of
sentence should be granted); Banks, 158 S.W.3d at 653 (holding that pen packet was
inadmissible because it lacked certification under seal); see also Johnson v. State, 583
S.W.2d 399 (Tex. Crim. App. [Panel Op.] 1979) (holding that proof was adequate to show
a prior conviction where the record was silent as to a notice of appeal). Neither concern is
applicable in this case. All of the documents are certified as true, and the record is silent
regarding an Illinois appeal. Even though the pen packet does not contain a certified
judgment and sentence, based on the documents that are enclosed, we conclude that the
trial court could have reasonably inferred that the pen packet was representative of a final
conviction. Cf. Martin, 227 S.W.3d at 338 (finding no abuse of discretion regarding the
admission of pen packet that contained a fingerprint card and inmate summary record
describing ―the crime alleged in the enhancement paragraph, the term of confinement, the
location of the prison, the sentencing court, and a detailed status of the inmate’s external
movements within the Department of Corrections system from admission to release‖);
Mitchell v. State, 848 S.W.2d 917, 918 (Tex. App.—Texarkana 1993, pet. ref’d) (holding
that pen packet proved final conviction where an ―Abstract of Judgment‖ was certified and
indicated the style and cause number of the underlying case, the name of the defendant, the
crime alleged, that the defendant was found guilty, and the length of his sentence).
Accordingly, the decision to admit the pen packet as the functional equivalent of a
judgment and sentence was not outside the zone of reasonable disagreement.

       Appellant’s first issue is overruled.



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                         SUFFICIENCY OF THE EVIDENCE

       In his second issue, appellant argues that, even if the pen packet were properly
admitted, the evidence is still insufficient to prove that he was convicted of the offense
alleged in the enhancement paragraph.

       Although authenticated copies of prison records are admissible to prove that a
defendant has been finally convicted of an earlier crime, such documents are not sufficient
by themselves. See Griffin v. State, 181 S.W.3d 818, 820 (Tex. App.—Houston [14th Dist.]
2005, pet. ref’d). The State must also introduce some independent, supporting evidence to
prove beyond a reasonable doubt that the defendant is the person described in those
documents. See Beck v. State, 719 S.W.2d 205, 209–10 (Tex. Crim. App. 1986); Roberts v.
State, 321 S.W.3d 545, 555 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). No
specific document or mode of proof is required to establish this connection. See Flowers v.
State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). The State may prove the connection in
a number of ways, including (1) the defendant’s admission or stipulation; (2) testimony by
a person who was present when the person was convicted of the specified crime and can
identify the defendant as that person; or (3) 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. Id. at 921–22.

       Because appellant raises a legal sufficiency challenge, we examine the evidence in
the light most favorable to the trial court’s judgment. See Littles v. State, 726 S.W.2d 26, 30
(Tex. Crim. App. 1984) (op. on reh’g). In this case, the complainant testified that appellant
was tried and sentenced for shooting a man in 1979. She stated that during appellant’s more
than three year stay in prison, she visited him periodically and memorialized those visits in
several family photographs. In those photographs, appellant is shown wearing an official
prison uniform, on which his name and prisoner identification number are inscribed.
Appellant is identified by the same prisoner identification number in his Order for
Discharge. Appellant admitted to having previously been charged with attempted murder
                                              7
in Illinois. Although he claimed to have been convicted for a crime he did not commit,
appellant conceded that the conviction reflected in the pen packet was his own.

       Viewing the evidence in the light most favorable the judgment, we conclude that the
evidence is sufficient to link appellant beyond a reasonable doubt to the final conviction
alleged in the enhancement paragraph.

       Appellant’s second issue is overruled.

                                      CONCLUSION

       Having examined the record, we hold that there is no error in the judgment requiring
reversal, but that there is error in the judgment as entered, which is capable of reformation.
The trial court’s judgment shows that appellant pleaded ―True‖ to the enhancement
allegation, but the record affirmatively reflects that he pleaded ―Not True‖ instead.
Therefore, we affirm the judgment as reformed to reflect that appellant pleaded ―Not True‖
to the enhancement paragraph alleged in the indictment.




                                           /s/       Adele Hedges
                                                     Chief Justice



Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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