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


                  No. 06-18-00140-CR



          MICHAEL CRAWFORD, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 431st District Court
                Denton County, Texas
            Trial Court No. F16-1629-431




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                    MEMORANDUM OPINION
        A Denton County jury convicted Michael Crawford of continuous violence against the

family, a third-degree felony. 1 See TEX. PENAL CODE ANN. § 25.11 (West 2011). After the jury

found the State’s enhancement allegations true, they assessed a punishment of forty-five years’

imprisonment. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2018).

        On appeal, Crawford argues that the trial court erred in admitting a penitentiary packet (pen

packet) because the State failed to prove that he was the person referred to in a portion of that

exhibit. Crawford also argues that the trial court erred in overruling his motion for new trial based

on ineffective assistance of counsel. Because we conclude that the trial court did not abuse its

discretion in either admitting the pen packet or in finding that Crawford’s counsel did not render

ineffective assistance, we affirm the trial court’s judgment.

I.      The Trial Court Did Not Abuse its Discretion in Admitting the Pen Packet

        In his first point of error, Crawford argues that the trial court abused its discretion by

admitting the pen packet because the State failed to prove that he was the person referred to in the

packet. We disagree.

        A.       Standard of Review and Applicable Law

        We review a trial court’s decision to admit evidence, including evidence of an extraneous

offense during the punishment phase, under an abuse-of-discretion standard. Mitchell v. State, 931

S.W.2d 950, 953 (Tex. Crim. App. 1996). As long as the trial court’s ruling falls within the zone


1
 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We follow the
precedent of the Second Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

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of reasonable disagreement, we will affirm its decision. Moses v. State, 105 S.W.3d 622, 627 (Tex.

Crim. App. 2003).

            “To establish that a defendant has been convicted of a prior offense, the State must prove

beyond a reasonable doubt that (1) a conviction exists and (2) the defendant is linked to the

conviction.” Paschall v. State, 285 S.W.3d 166, 174 (Tex. App.—Fort Worth 2009, pet. ref’d)

(citing 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. “There is no ‘best evidence’ rule

in Texas that requires that the fact of a prior conviction be proven with any document, much less

any specific document.” Flowers, 220 S.W.3d at 921. “[T]he State may prove both of these

elements in a number of ways, including 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.” Paschall, 285 S.W.3d at 174 (citing Flowers, 220 S.W.3d at

921–22). This includes “authenticated copies of the Texas Department of Corrections (n/k/a Texas

Department of Criminal Justice—[Correctional] Institution[s] Division [TDCJ]) records, including

fingerprints, supported by expert testimony identifying them as identical with known prints of the

defendant.” Id. at 174–75 (citing Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. App. 1986)).

            “When properly authenticated copies of the convicting court’s judgment and sentence are

used, they are admissible at trial.” 2 Perez v. State, 21 S.W.3d 628, 630 (Tex. App.—Houston [14th

Dist.] 2000, no pet.). “However, the relevance of records showing a prior criminal conviction is

conditioned upon the introduction of evidence sufficient to support a finding that the defendant on


2
    Crawford does not argue that the records were improperly authenticated.
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trial is the same person as the one previously convicted.” Id. “The fact[-]finder looks at the totality

of the evidence to determine whether the State proved the prior conviction beyond a reasonable

doubt.” Paschall, 285 S.W.3d at 175 (citing Flowers, 220 S.W.3d at 923). “Just as there is more

than one way to skin a cat, there is more than one way to prove a prior conviction.” Flowers, 220

S.W.3d at 922; see Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1987) (op. on reh’g)

(holding combination of expert testimony concerning fingerprint comparison and photograph

comparison by jury sufficient); Gollin v. State, 554 S.W.2d 683, 686–87 (Tex. Crim. App. 1977)

(holding testimony that photograph and physical description in pen packet were of the defendant

was sufficient), overruled on other grounds by Littles, 726 S.W.2d at 28.

       As the Texas Court of Criminal Appeals noted in Human v. State,

       [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 closely resembles
       pieces of a jigsaw puzzle. The pieces standing alone usually have little meaning.
       However, when the pieces are fitted together, they usually form the picture of the
       person who committed the alleged prior conviction or convictions.

Flowers, 220 S.W.3d at 923 (quoting Human v. State, 749 S.W.2d 832, 835–36 (Tex. Crim. App.

1988)). “The trier of fact fits the pieces of the jigsaw puzzle together and weighs the credibility

of each piece.” Id.

       A.      Analysis

       The pen packet at issue included an October 30, 2002, judgment for evading arrest. The

judgment listed the name of the defendant as Nicholas Scardino, and the TDCJ affidavit

authenticating the pen packet certified that the information was for “inmate SCARDINO,

NICHOLAS.” The pen packet included two sets of fingerprint cards. The first card demonstrated

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that the fingerprints of Scardino were taken on November 5, 2002 (Scardino Card). The second

card, listing the date of offense as 2004, showed that the fingerprints taken were from Crawford

(Crawford Card). The State’s fingerprint expert, Mike Sparby, an investigator with the district

attorney’s office, testified that the quality of the fingerprints on the Scardino Card were too poor

to compare them to Crawford’s known fingerprints, but that the prints on the Crawford Card

matched Crawford’s known fingerprints. The Scardino Card and the Crawford Card contained the

same Department of Public Safety number. Yet, the Scardino Card listed a March 13, 1980,

birthday and recorded that Scardino was six feet, two inches tall and had a back tattoo, while the

Crawford Card listed an August 19, 1973, birthdate and reflected that Crawford was six feet tall

and had no tattoos. Sparby acknowledged that there could have been a mistake.

       Nevertheless, prior to admitting the pen packet over Crawford’s objection, the trial court

heard testimony from Sparby that the pen packet also included photographs of the inmate identified

as Scardino and that the photos depicted Crawford’s face. The trial court likely compared the pen

packet photographs, taken on the date “Scardino” was processed to jail, to Crawford’s appearance

at trial and to other pen packet photographs, known to depict Crawford, that were already admitted

into evidence. The trial court had also already heard evidence that a third fingerprint card for

“Cardino, Nicholas” contained fingerprints that matched Crawford’s known fingerprints, as well

as his social security number. Additionally, other evidence already admitted at trial demonstrated

that Crawford used a host of aliases in his lifetime, including Nicholas Scardino.

       In light of the evidence linking Crawford to the pen packet, we cannot say that the trial

court abused its discretion in admitting it. Therefore, we overrule Crawford’s first point of error.

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II.     The Trial Court Did Not Abuse its Discretion in Finding that Counsel Did Not Render
        Ineffective Assistance

        In his verified motion for new trial, Crawford averred that, on the alleged deficient advice

of his attorney, he rejected a plea bargain in which the State had offered him five years’

imprisonment in exchange for his plea of guilty to the offense.

        A.      Factual Background

        Crawford was the only witness at the hearing on his motion for new trial. Crawford stated

that, on October 13, 2017, his counsel, Christopher Jones, informed him that the State had offered

a plea bargain of five years’ imprisonment and intended to enhance his punishment if the offer was

rejected. According to Crawford, Jones explained that the offense charged was a third-degree

felony, but that the State would enhance the offense “to a 2nd degree felony with a range of 2 years

to 20 years” if Crawford did not accept the plea offer. See TEX. PENAL CODE ANN. §§ 12.42(d),

12.33 (West 2011). According to Crawford, Jones informed him that there “was three hours worth

of [digital] discovery” in the case and that he had not reviewed all of it. Because Crawford had

not seen any discovery in the case, he confirmed that he denied the plea offer. Jones stated that he

would return to the jail to review the discovery with Crawford, but never did. Jones withdrew

from his representation on January 12, 2018, and his second counsel, Michael Dance, was

appointed on the same day.

        Crawford stated that, although he was never given a written plea offer, Dance informed

him on January 15, 2018, that the punishment might be more than twenty years’ imprisonment and

told him that he had seven days to accept or reject a plea offer of five or six years or face the State’s


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decision to enhance the punishment range to twenty-five years or life. 3 Because Dance did not

return to the jail within seven days to visit him, Crawford called his office on the eighth day to

accept a plea offer, but was told that the offer had been withdrawn by the State. On February 2,

2018, the State filed a notice of intent to enhance Crawford’s punishment, not with one, but with

two prior felony convictions, thereby increasing his range of punishment to imprisonment for

twenty-five years to life. See TEX. PENAL CODE ANN. § 12.42(d).

            Crawford stated that, because the offer relayed by Dance was not in writing, he believed

that the October 13, 2017, offer relayed by Jones was his last opportunity to enter into a plea

bargain agreement. Arguing that he should receive a new trial, Crawford stated he would have

accepted the five-year offer on October 13, 2017, if Jones had properly advised him of the twenty-

five to life punishment range. Accordingly, he complains that Jones’ ineffective assistance in

failing to advise him that he would eventually face a sentence of twenty-five years to life deprived

him of the ability to accept the State’s plea bargain. He also argues that both Jones and Dance

rendered ineffective assistance in failing to provide him with any discovery in his case before the

State withdraw its plea offer.

            B.       Standard of Review

            “There is no doubt that an accused is entitled to effective assistance of counsel during the

plea bargaining process.” Ex parte Argent, 393 S.W.3d 781, 782 (Tex. Crim. App. 2013) (quoting

Ex parte Wilson, 724 S.W.2d 72, 73 (Tex. Crim. App. 1987)). As many cases have noted, the right

to counsel does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483


3
    Crawford testified that he was unsure whether the offer was for five years or six years.
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(Tex. Crim. App. 2006). In order to prevail on a claim of ineffective assistance of counsel, the

defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668,

687–88 (1984). See also Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). The

first prong requires a showing that counsel’s performance fell below an objective standard of

reasonableness. Strickland, 466 U.S. at 688. This requirement can be difficult to meet since there

is “a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 669. The second Strickland prong, sometimes referred to as “the

prejudice prong,” requires a showing that, but for counsel’s unprofessional error, there is a

reasonable probability that the result of the proceeding would have been different. Id. at 694.

         The Texas Court of Criminal Appeals has said that “[t]rial counsel ‘should ordinarily be

afforded an opportunity to explain his actions’ before being denounced as ineffective.” Menefield

v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005)). Where an appellate record is silent as to why trial counsel

failed to take certain actions, the appellant has “failed to rebut the presumption that trial counsel’s

decision was in some way—be it conceivable or not—reasonable.” Mata v. State, 226 S.W.3d

425, 431 (Tex. Crim. App. 2007); see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.

1999).

         A reviewing court measures a trial court’s ruling on a motion for new trial under an abuse-

of-discretion standard. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012), overruled on

other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2013). A trial court abuses its

discretion in this context only when no reasonable view of the record could support its ruling,

                                                  8
which will be upheld on appeal so long as it falls within the zone of reasonable disagreement. Id.

For that reason, “[w]hen the trial court denies a motion for a new trial alleging ineffective

assistance of counsel, ‘we view the relevant legal standards through the prism of abuse of

discretion.’” Lampkin v. State, 470 S.W.3d 876, 903 (Tex. App.—Texarkana 2015, pet. ref’d)

(quoting Ramirez v. State, 301 S.W.3d 410, 415 (Tex. App.—Austin 2009, no pet.)). We must

therefore decide whether the trial court erred in determining that Crawford failed to meet the two-

prong Strickland test.

       C.      Analysis

       Because Crawford did not call Jones or Dance to testify, the record is silent as to why

counsel failed to take the complained-of actions. The majority of Crawford’s brief complains of

Jones’ failure to inform him that his range of punishment was twenty-five years to life. However,

the record establishes that Crawford’s punishment was not enhanced until after Jones withdrew

from representation. Because it is possible Jones was never aware that the State intended to

enhance Crawford’s punishment by two prior felony convictions, the trial court did not abuse its

discretion in determining that Jones did not render ineffective assistance by failing to notify

Crawford of his eventual punishment range.

       With respect to counsel’s failure to review the discovery with Crawford, the record is silent

as to when Jones and Dance received the electronic discovery. The record demonstrates, however,

that Jones had not reviewed all the electronic discovery at the time he relayed the plea offer to

Crawford, that he later withdrew, and that Dance had only been appointed for less than one month

before the State withdrew its plea offer. Because it is possible counsel believed it wise to review

                                                9
the discovery before reviewing it with Crawford, the trial court did not abuse its discretion in

concluding counsel’s omissions reasonable.

        Moreover, to show prejudice from ineffective assistance of his trial counsel at the plea

bargain stage, Crawford was required to “show a reasonable probability that: (1) he would have

accepted the . . . offer if counsel had not given ineffective assistance; (2) the prosecution would

not have withdrawn the offer; and (3) the trial court would not have refused to accept the plea

bargain.” Argent, 393 S.W.3d at 784. Because Crawford did not present evidence demonstrating

the second or third requirement, the trial court did not abuse its discretion in overruling his motion

for new trial.

III.    Conclusion

        We affirm the trial court’s judgment.



                                                      Ralph K. Burgess
                                                      Justice

Date Submitted:        March 7, 2019
Date Decided:          March 29, 2019

Do Not Publish




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