                                   MEMORANDUM OPINION
                                           No. 04-09-00385-CR

                                           Daniel BAUTISTA,
                                                Appellant

                                                     v.

                                          The STATE of Texas,
                                                Appellee

                        From the 81st Judicial District Court, Karnes County, Texas
                                   Trial Court No. 08-11-00129-CRK
                              Honorable Bert Richardson, Judge Presiding 1

Opinion by:         Karen Angelini, Justice

Sitting:            Catherine Stone, Chief Justice
                    Karen Angelini, Justice
                    Rebecca Simmons, Justice

Delivered and Filed: July 7, 2010

AFFIRMED

           Daniel Bautista appeals his conviction for possessing a cellular telephone while an inmate

in a correctional facility. The indictment included an enhancement paragraph for conviction of a

prior felony, which raised the level of offense from a third degree felony to a second degree

felony. After the jury found Bautista guilty, the trial court found the enhancement allegation to

be true and sentenced Bautista to serve ten years imprisonment. In one issue on appeal, Bautista



1
    Sitting by assignment.
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argues he is entitled to a new punishment hearing because the evidence is legally insufficient to

prove the enhancement paragraph alleged in the indictment. We disagree and affirm the trial

court’s judgment.

                                             DISCUSSION

          In reviewing whether the evidence is legally sufficient to support a conviction, we view

all the evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable doubt.

Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000), cert. denied, 130 S. Ct 2094

(2010).

          To meet its burden of establishing a defendant has been convicted of a prior offense, “the

State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the

defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App.

2007). There is no specific document or mode of proof required to prove these two elements. Id.

Further, there is no “best evidence” rule requiring the prior conviction be proved with any

document, much less any specific document. Id. Although a certified copy of a final judgment

and sentence may be the preferred and convenient method of proof, the State may prove the two

elements in a number of different ways. Id. “Any type of evidence, documentary or testimonial,

might suffice.” Id. at 922.

          The Texas Court of Criminal Appeals has likened the proof necessary to establish that a

defendant on trial is the same person named in an alleged prior criminal conviction to a jigsaw

puzzle. Id. at 923. Although the puzzle pieces standing alone may have little meaning, when the

pieces are fitted together, they usually form the picture of the person who committed the alleged




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prior conviction. Id. The trier of fact must look at the totality of the evidence to determine

whether there was a previous conviction and whether the defendant was the person convicted. Id.

       Bautista argues that the evidence introduced during the punishment phase of the trial,

commonly referred to as a “pen packet,” was not sufficient to prove beyond a reasonable doubt

that he had been previously convicted of the cause number alleged in the indictment. More

specifically, Bautista contends “there was no evidence specifically tying the judgment in the pen

pack to [Bautista].”

       The enhancement paragraph of the indictment alleged that “prior to the commission of

the aforesaid offense on the 19th day of October, 1995, in Cause #K95-504 in the 49th District

Court of Webb County, Texas, the defendant was convicted of the felony offense of Murder.”

Thus, in order to prove the enhancement allegation, the State was required to link Bautista to the

murder conviction out of Webb County as alleged in the indictment.

        At the punishment phase of Bautista’s trial, the State introduced the “pen packet,” the

first page of which was an affidavit of the Chairman of Classification and Records for the Texas

Department of Criminal Justice - Correctional Institutions Division, certifying the attached

documents as true and correct copies of the original records. The second page shows two

photographs of a male individual, a front view and a side view, labeled “Texas Department of

Criminal Justice – ID” and bearing the number 739045, the date of 02/06/96, and the name

“Bautista, Daniel.” The next four pages in the “pen packet” are the Judgment and Sentence in

Cause No. K95-504, styled “The State of Texas vs. Daniel Bautista.” The Judgment and

Sentence recite, among other facts, the date of judgment – November 20, 1995; the offense

convicted of – Murder; the sentence assessed – thirty years; and the date to commence

confinement – October 19, 1995. The Judgment and Sentence is signed by “Manuel R. Flores,



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Judge for the 49th Judicial District Court Webb County, Texas.” Also contained within the “pen

packet” is a fingerprint card bearing numerous fingerprints. The fingerprint card also contains the

following information:

       Date of arrest: 10-19-95
       Name: Bautista, Daniel
       Date of birth: 8-19-77
       Place of birth: Harris
       Sex: M
       Race: H
       Height: 5-8
       Weight: 141
       Eyes: Brn
       Hair: Blk
       Skintone: Light
       County sentenced from: Webb Co.
       Custody: TX013015C
       TDCJ-ID#: 739045
       Date received: 2-05-96
       Charges: Murder
       Disposition: 30 yrs.
       Last residence: Laredo Tx.

       Additionally, during the punishment phase of the trial, the State presented the testimony

of Israel Brionez, Jr., an investigator and fingerprint expert, who testified that he took

fingerprints of Bautista before testifying and those fingerprints matched the fingerprints on the

fingerprint card in the “pen packet.” When Bautista’s attorney objected to the “pen packet,”

arguing that there was no link between the judgment and Bautista, the court stated the following:

               Well, I guess what I see here is the affidavit that typically comes
               with a pen-pack, the photograph, there’s a copy of the judgment
               that comes out of the 49th Judicial District Court out of Webb
               County stating the nature of the offense. It’s a judgment that’s
               signed by the Judge on – in January of 1996. And there’s a
               fingerprint card attached that has all the similar identifiers of the
               defendant, name, date received, conviction, Webb County, all of
               that.




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       Later, when Bautista’s attorney argued that in order to prove the enhancement paragraph,

Bautista’s fingerprint must appear on the judgment itself, the trial court noted the following:

               . . . let me just note for the record that the indictment alleges that
               the defendant was convicted out of Webb County on the 19th day
               of October, 1995 in Cause Number K95-504 in the 49th District
               Court. There’s a self-authenticating – There’s an affidavit attached
               to the pen-pack [that] contains a photograph of the defendant. And
               I=ll note for the record that it has the same TDC number on it that is
               noted on the indictment. The photograph appears to be that of the
               defendant who’s seated in the courtroom today. There is a
               judgment signed by Manuel Flores, who is a Presiding Judge, and
               it’s out of the 49th Judicial District Court, Webb County, where it
               states that the date the sentence was imposed was October 19th,
               1995. Daniel Bautista is named as the defendant in that judgment,
               which is identical to what’s alleged in the indictment, and there’s a
               fingerprint card attached.

       On appeal, Bautista argues that the evidence did not prove that he was the same person

who was named in the Webb County Judgment and Sentence. In support of his argument,

Bautista cites two cases: Cruz v. State, No. 08-06-00294-CR, 2009 WL 475784 (Tex. App.—El

Paso 2009, no pet.), and Zimmer v. State, 989 S.W.2d 48 (Tex. App.—San Antonio 1998, pet.

ref’d). However, both cases are distinguishable.

       In Cruz, the El Paso Court of Appeals reversed and remanded for a new punishment

hearing because the State failed to introduce the pen packet into evidence. Cruz, 2009 WL

475784, at *2. The court reasoned that “[t]o establish a prior conviction in the manner attempted

by the State, certified copies of a judgment and a sentence and authenticated copies of the prison

records including fingerprints, supported by expert testimony identifying them as identical with

known prints of the defendant must be introduced.” Id. (emphasis in original). In the case before

us, the State did precisely what the El Paso court stated must be done.

       In Zimmer, 989 S.W.2d at 50, the State introduced only a booking slip, but not the

complete pen packet. This court held the booking slip insufficient to prove the enhancement

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allegation, noting that there was no other evidence, such as a photograph, that could link the

defendant to the prior conviction. Id. at 51. In the case before us, however, the State did

introduce the complete authenticated pen packet, which included the photographs of Bautista.

       In response to Bautista’s argument, the State contends that, viewing the evidence in the

light most favorable to the verdict, the trial court could find the evidence sufficient to support the

enhancement allegation. We agree. The evidence consisted of the authenticated “pen packet,”

which contained the prior Judgment and Sentence, the photographs of Bautista, and the

fingerprint card. The evidence also included expert opinion testimony that the fingerprints on the

fingerprint card are the same as Bautista’s fingerprints. Additionally, the fingerprint card reflects

the date of arrest as 10-19-95, which is consistent with the date of confinement commencing on

10-19-95 as recited in the judgment. The fingerprint card, judgment, and indictment in the case

before us list the same name as the defendant, Daniel Bautista. The fingerprint card reflects

Bautista’s date of birth as 8-19-77; gender as male; race as Hispanic; height as 5'8"; weight as

141 lbs; eyes as brown; hair as black; and skin tone as light. These are all identifiers that were

readily visible to the trial court when he observed Bautista during the course of the trial. The

TDCJ-ID# of 739045 appeared on the indictment in the case being tried as well as on the

photograph of Bautista and fingerprint card contained in the “pen packet.” Further, the

fingerprint card indicates “date received” as 2-05-96, which is a little over two months after the

November 20, 1995, date of the judgment. Lastly, the fingerprint card reflects the charge as

murder and the disposition as thirty years, which corresponds with the charge and disposition in

the judgment.

       As noted, the trier of fact must look at the totality of the evidence to determine if there is

sufficient evidence to link the defendant to the prior conviction. We find that, considering the



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authenticated evidence contained in the “pen packet,” together with the expert fingerprint

testimony and the trial court’s ability to view and identify the individual before him, the evidence

is legally sufficient to link Bautista to the prior conviction.

        Accordingly, we affirm the trial court’s judgment.




                                                    Karen Angelini, Justice

DO NOT PUBLISH




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