                                                                      PD-1481-15
                        PD-1481-15                   COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                   Transmitted 11/13/2015 5:19:19 PM
                                                     Accepted 11/16/2015 3:19:06 PM
                        NO. _______________                           ABEL ACOSTA
                                                                              CLERK

                        IN THE
              COURT OF CRIMINAL APPEALS
                       OF TEXAS
 ___________________________________________________

                    RALPH PENA LUERA, PETITIONER

                                VS.

                  THE STATE OF TEXAS
 ___________________________________________________

  PETITION IN CAUSE NO. 5525 FROM THE 100TH JUDICIAL
        DISTRICT COURT OF CARSON COUNTY, TEXAS
                          AND
   THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF
     TEXAS AT AMARILLO, TEXAS, NO. 07-14-00111-CR
 ___________________________________________________

          PETITION FOR DISCRETIONARY REVIEW
 ___________________________________________________

                             Respectfully submitted,

                             BIRD, BIRD & RABE
                             ATTORNEYS AT LAW
                             P.O. BOX 1257
                             CHILDRESS, TEXAS 79201

                         BY: /s/ Dale A. Rabe, Jr.
                             DALE A. RABE, JR.,
                             ATTORNEY FOR PETITIONER

                             TELEPHONE NO.:   940-937-2543
                             FACSIMILE NO.:   940-937-3431
November 17, 2015
                             E-MAIL: birdbirdrabe@gmail.com
                             STATE BAR NO.:   24027638
    IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL

TRIAL JUDGE:             Hon. Stuart Messer
                         P.O. Box 887
                         Clarendon, Texas 79226
                         806-874-0122
                         806-874-5146 (Facsimile)

APPELLANT:               Mr. Ralph Pena Luera
                         TDCJ #01918244
                         1536 East IH-10
                         Fort Stockton, Texas 79735

    TRIAL COUNSEL:       Mr. Earl Griffin, Jr.
                         127 Avenue B, NW
                         P.O. Box 730
                         Childress, Texas 79201
                         940-937-6474
                         940-937-6020 (Facsimile)
                         egriffinattorney@yahoo.com

    APPELLATE COUNSEL:   Mr. Dale A. Rabe, Jr.
                         109 Avenue B, NE
                         P.O. Box 1257
                         Childress, Texas 79201
                         940-937-2543
                         940-937-3431 (Facsimile)
                         birdbirdrabe@gmail.com

APPELLEE:                State of Texas

    TRIAL COUNSEL/APPELLATE COUNSEL:
                          Mr. Luke Inman
                          800 West Avenue, Box 1
                          Wellington, Texas 79095
                          806-447-0055
                          866-233-2738 (Facsimile)
                          luke.inman@windstream.net




                         2
                    TABLE OF CONTENTS

Identity of the Judge, Parties, and Counsel   2

Table of Contents                             3

Index of Authorities                          4

Statement Regarding Oral Argument             5

Statement of the Case                         5

Statement of Procedural History               6

Ground for Review:                            7

    IS   EFFECTIVE  CONSENT  TO   ENTER  A
    HABITATION CONDITIONED ON CONSENT FROM
    SOMEONE WHO HAS AN OWNERSHIP INTEREST
    IN THE HABITATION OR IS CONSENT FROM A
    PERSON IN POSSESSION OF THE HABITATION
    SUFFICIENT?

Argument                                      7

Prayer for Relief                             8

Appendix                                      10

Certificate of Compliance                     11

Certificate of Service                        11




                            3
               INDEX OF AUTHORITIES

CASES

Ex parte Davis, 542 S.W.2d 192
(Tex. Crim. App. 1976)                  7

Villanueva v. State, 711 S.W.2d 739
(Tex. App.—San Antonio 1986),
pet. ref’d per curium,
725 S.W.2d 244 (Tex. Crim. App. 1987)   7




                         4
                  NO. _______________

                       IN THE
             COURT OF CRIMINAL APPEALS
                      OF TEXAS
___________________________________________________

            RALPH PENA LUERA, PETITIONER

                             VS.

                 THE STATE OF TEXAS
___________________________________________________

 PETITION IN CAUSE NO. 5525 FROM THE 100TH JUDICIAL
       DISTRICT COURT OF CARSON COUNTY, TEXAS
                         AND
  THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF
    TEXAS AT AMARILLO, TEXAS, NO. 07-14-00111-CR
___________________________________________________

          PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS OF TEXAS:

          STATEMENT REGARDING ORAL ARGUMENT

    The    ground     for     review    herein    involves

interpretation   of   case    law.     Oral   argument   may

prove helpful to the Court.

                 STATEMENT OF THE CASE

    The Petitioner, Ralph Pena Luera, was charged

by indictment with the offense of burglary of a


                             5
habitation    which       was   enhanced    to    a     first   degree

felony due to prior convictions.                Petitioner pleaded

not guilty to the offense alleged in the indictment.

The Carson County, Texas, jury found Ralph Luera

guilty of burglary of a habitation.                   The same jury

found the enhancement paragraphs true and assessed

punishment     at     forty-five         years     in     the    Texas

Department      of         Criminal        Justice-Institutional

Division.       The       court    of    appeals      affirmed      the

judgment and sentence.            This Petition challenges the

holding of the Seventh Court of Appeals.

             STATEMENT OF PROCEDURAL HISTORY

    The     court    of    appeals       rendered     its    decision

affirming    the     judgment       of    the    trial      court   on

September 16, 2015.

    Petitioner filed his Motion for Rehearing on

October 1, 2015.

    Petitioner’s Motion for Rehearing was overruled

on October 14, 2015.




                                   6
                    GROUND FOR REVIEW

    IS EFFECTIVE CONSENT TO ENTER A HABITATION
CONDITIONED ON CONSENT FROM SOMEONE WHO HAS AN
OWNERSHIP INTEREST IN THE HABITATION OR IS CONSENT
FROM A PERSON IN POSSESSION OF THE HABITATION
SUFFICIENT?

                          ARGUMENT

    It is respectfully submitted that the court of

appeals    erred   in   holding   that   Petitioner   lacked

effective consent to enter the home of the alleged

victim in the case at bar.

    Petitioner      respectfully     submits     that    the

Seventh Court of Appeals erred in its application of

Villanueva to the case at bar.       Villanueva v. State,

711 S.W.2d 739 (Tex. App.—San Antonio 1986), pet.

ref’d per curium, 725 S.W.2d 244 (Tex. Crim. App.

1987).     As noted in Villanueva, ownership is not

restricted to those persons having title interest in

property, but can include those in possession.          Id.,

citing Ex parte Davis, 542 S.W.2d 192, 195 (Tex.

Crim.     App.   1976).     In    this   case,   Petitioner

reasonably relied on Roper’s past dealings with her



                             7
sister, as noted in Petitioner’s statement that was

introduced into evidence as State’s Trial Exhibit 5,

that Roper had apparent authority and constructive

possession     of   Julie   Preston’s   house   while   Julie

Preston was on vacation.          Therefore, as argued in

Petitioner’s brief in the Seventh Court of Appeals,

the evidence was insufficient to convict Appellant

of burglary of a habitation.

       Based on the foregoing, Petitioner respectfully

requests this Honorable Court grant his Petition for

Discretionary Review.

                     PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, the Petitioner

respectfully prays this Court grant this Petition

and,    upon   reviewing    the   judgment   entered    below,

reverse this cause and remand this case for a new

trial.




                              8
    Respectfully submitted,

    BIRD, BIRD & RABE
    ATTORNEYS AT LAW
    P.O. BOX 1257
    CHILDRESS, TEXAS 79201


BY: /s/ Dale A. Rabe, Jr.
    DALE A. RABE, JR.,
    ATTORNEY FOR PETITIONER

    TELEPHONE NO.:   940-937-2543
    FACSIMILE NO.:   940-937-3431
    E-MAIL: birdbirdrabe@gmail.com
    STATE BAR NO.:   24027638




        9
                      APPENDIX

1.   Letter from Court of Appeals September 16, 2015

2.   Judgment, Trial Court’s Rulings Affirmed

3.   Memorandum Opinion




                          10
              CERTIFICATE OF COMPLIANCE

      I hereby certify that the above and foregoing

Petition for Discretionary Review is 997 words in

its   completion,   signed   on   this   the    13th   day   of

November,   2015,   in    accordance     with    the    rules

governing same.

                         /s/ Dale A. Rabe, Jr.
                         DALE A. RABE, JR.



               CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy

of the foregoing Petition for Discretionary Review

was delivered as indicated below on this the 13th

day of November, 2015, to the following:

Mr. Luke Inman                    VIA E-SERVICE
District Attorney
800 West Avenue, Box 1
Wellington, Texas 79095

Mr. Ralph Luera                   VIA U.S. MAIL
TDCJ # 01918244
1536 East IH-10
Fort Stockton, Texas     79735

                         /s/ Dale A. Rabe, Jr.
                         DALE A. RABE, JR.



                             11
                                                                                     FILE COPY




   BRIAN QUINN
    Chief Justice
                                  Court of Appeals                                 VIVIAN LONG
                                                                                       Clerk

JAMES T. CAMPBELL
      Justice
                                  Seventh District of Texas                      MAILING ADDRESS:
MACKEY K. HANCOCK
      Justice
                                Potter County Courts Building                      P. O. Box 9540
                                                                                     79105-9540
                                 501 S. Fillmore, Suite 2-A
 PATRICK A. PIRTLE
       Justice                   Amarillo, Texas 79101-2449                        (806) 342-2650

                                www.txcourts.gov/7thcoa.aspx

                                    September 16, 2015

Dale A. Rabe                                    Luke McLean Inman
BIRD, BIRD & RABE                               District Attorney
P.O. Box 1257                                   800 West Ave., Box 1
Childress, TX 79201-1257                        Wellington, TX 79095
* DELIVERED VIA E-MAIL *                        * DELIVERED VIA E-MAIL *

RE:       Case Number: 07-14-00111-CR
          Trial Court Case Number: 5525-A

Style: Ralph Pena Luera v. The State of Texas

Dear Counsel:

      The Court this day issued an opinion and judgment in the captioned cause. TEX.
R. APP. P. 48.

        In addition, pursuant to Texas Government Code, Sec. 51.204(b)(2), exhibits on
file with this Court, if any, will be destroyed three years after final disposition of the case
or at an earlier date if ordered by the Court.

                                                   Very truly yours,
                                                   Vivian Long
                                                   VIVIAN LONG, CLERK

 xc:       Honorable Stuart Messer (DELIVERED VIA E-MAIL)
           Celeste Bichsel (DELIVERED VIA E-MAIL)
                                                                                    FILE COPY




                                  No. 07-14-00111-CR


Ralph Pena Luera                            §     From the 100th District Court
 Appellant                                          of Carson County
                                            §
v.                                                September 16, 2015
                                            §
The State of Texas                                Opinion by Justice Campbell
 Appellee                                   §

                                  J U D G M E N T

      Pursuant to the opinion of the Court dated September 16, 2015, it is ordered,

adjudged and decreed that the judgment of the trial court be affirmed.

      Inasmuch as this is an appeal in forma pauperis, no costs beyond those that

have been paid are adjudged.

      It is further ordered that this decision be certified below for observance.

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

                                   No. 07-14-00111-CR


                         RALPH PENA LUERA, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 100th District Court
                                  Carson County, Texas
                Trial Court No. 5525-A, Honorable Stuart Messer, Presiding

                                 September 16, 2015

                           MEMORANDUM OPINION
                  Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      A jury convicted appellant Ralph Pena Luera of burglary of a habitation and

assessed punishment, enhanced, at forty-five years’ confinement in prison.1 Appellant

presents two issues on appeal, arguing the State failed to prove he lacked the effective

consent of the owner of the house, and the evidence was insufficient to prove the prior




      1
       See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011) (burglary); § 12.42(d)
(West Supp. 2014) (enhancement of term of incarceration).
convictions for enhancement of punishment. We find in both instances the evidence

was sufficient, and affirm the judgment.


                                         Background


       Alvin Preston and his wife Julie Preston2 became acquainted with appellant

through her sister Jamie Roper. Roper and appellant are the parents of a child. On

three or four occasions prior to August 20, 2013, appellant and Roper visited the

Prestons’ home together. Julie at times allowed appellant to borrow the family’s laptop

computer.


       Roper once had a key to the Preston home and had permission to enter when

the Prestons were gone. After the key was lost, Julie gave Roper permission to enter

her home through a window. Julie had no objection to Roper entering the house in this

way, if Roper first notified her. Julie testified appellant did not have permission to enter

her home. She said appellant had no reason to be in her home and she did not trust

him. Alvin Preston testified that appellant did not have permission to enter the Preston

home in his absence or the absence of his family.


       On August 20, 2013, the Prestons took an out-of-state vacation. During their

vacation, Roper sent Julie a text message stating Roper had left her makeup at the

Preston home. Julie responded that Roper was “out of luck” because the house was

locked. She would have to wait. According to Julie’s testimony appellant did not have

permission to borrow the Preston’s laptop computer while they were on vacation.




       2
           For clarity, we sometimes will refer to the Prestons by their given names.

                                               2
       When the Prestons returned from vacation they noticed their laptop computer

and a pistol were missing from their home. They contacted the sheriff’s department. An

investigation ensued, and a deputy interviewed Roper and appellant.


       According to the deputy’s testimony, appellant told him he entered the Preston

residence through a kitchen window and took the Prestons’ laptop computer without

permission. In another interview with the deputy, appellant admitted taking a pistol from

the residence.


       Appellant did not testify at trial.        The State’s evidence included a written

statement appellant gave law enforcement, saying he entered the residence to retrieve

the makeup because Roper told him it was “okay.” The written statement also includes

the assertions he previously used the Prestons’ laptop computer “a lot” and that he took

it on this occasion to use it. He further wrote that on a prior occasion he and Roper

entered the Prestons’ locked residence through a window, with Julie’s permission.


       The indictment alleged “[appellant] on or about the 20th day of August, 2013 . . .

did then and there: with intent to commit theft, enter a habitation, without the effective

consent of Julie Preston, the owner thereof.”


       The application paragraph in the jury charge at the guilt-innocence phase of trial

stated:


       You must determine whether the state has proved, beyond a reasonable
       doubt, four elements. The elements are that-

              1. The Defendant, in Carson County, Texas, on or about the
              20th day of August, 2013 entered a place, and



                                              3
              2. The place entered was a habitation owned by Julie
              Preston; and

              3. Julie Preston, the owner of the habitation, did not
              effectively consent to this entry; and

              4. The Defendant entered with intent to commit a theft.

       If you all agree the state has proved, beyond a reasonable doubt, each of
       the four elements listed above, you must find the Defendant “guilty” of
       Burglary of a Habitation.

       After the jury found appellant guilty of the charged offense, at the punishment

phase it also found the two enhancement convictions true and assessed punishment as

noted. Sentence was imposed accordingly.


                                        Analysis


First Issue


       By his first issue, appellant asserts the State’s evidence that he entered the

residence without Julie Preston’s effective consent was insufficient. Appellant contends

in essence that he reasonably “was under the assumption” Roper was authorized to

give him permission to enter the residence to retrieve her makeup, because of the prior

dealings among the Prestons, Roper and appellant.


       In reviewing whether the evidence is sufficient to support a criminal conviction,

we apply the standard articulated 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, 894-95 (Tex. Crim.

App. 2010). Under that standard, a reviewing court views all the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could have


                                            4
found the essential elements of the offense beyond a reasonable doubt. Wise v. State,

364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Brooks, 323 S.W.3d at 894-95, (citing

Jackson, 443 U.S. at 319). The jury was the exclusive judge of witness credibility and

the weight assigned their testimony and was free to choose to believe all, some or none

of the evidence presented. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.

2008). If the record contains conflicting inferences, we must presume the jury resolved

such facts in favor of the verdict and defer to that resolution. Id. On appeal, we serve

only to ensure the jury reached a rational verdict, and we may not reevaluate the weight

and credibility of the evidence produced at trial and in so doing substitute our judgment

for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

The sufficiency standard is the same for both direct and circumstantial evidence. Wise,

364 S.W.3d at 903. For the evidence to be sufficient, the State need not disprove all

reasonable alternative hypotheses that are inconsistent with the defendant’s guilt. Id.

Rather, a court considers only whether the inferences necessary to establish guilt are

reasonable based upon the cumulative force of all the evidence when considered in the

light most favorable to the verdict. Id.


       A person commits burglary of a habitation when he, without the effective consent

of the owner, enters a habitation with intent to commit theft. TEX. PENAL CODE ANN. §

30.02(a)(1). “Consent” means assent in fact, whether express or apparent. TEX. PENAL

CODE ANN. § 1.07(a)(11) (West Supp. 2014). “Effective consent” includes consent by a

person legally authorized to act for the owner. TEX. PENAL CODE ANN. § 1.07(a)(19). An

“owner” includes a person who “has title to the property, possession of the property,

whether lawful or not, or a greater right to possession of the property than the actor.”


                                            5
TEX. PENAL CODE ANN. § 1.07(a)(35)(A).           The Penal Code definition of “effective

consent” also includes the statement of circumstances in which consent is not effective.

One of those circumstances is consent “given by a person the actor knows is not legally

authorized to act for the owner.” TEX. PENAL CODE ANN. § 1.07(a)(19)(B).


       The court’s charge instructed the jury that consent to an entry is effective if it is

given by “a person not the owner but who is believed by the Defendant to be legally

authorized to act for the owner.”3


       It is undisputed that Julie Preston and Alvin Preston own the home.             The

Prestons each testified that appellant did not have their permission to enter their home.

Julie testified that on previous occasions she had authorized Roper to enter the home

when it was locked, through a window. Neither of the Prestons testified they had ever

authorized appellant to enter their home when they were not present, nor did they testify

they had authorized Roper to permit appellant to enter their home.


       As noted, appellant wrote in his statement that he and Roper once entered the

locked home through a window, with Julie’s permission. And, he wrote that Roper told

him it was “okay” to enter the Preston home to retrieve her left-behind makeup. The

court’s charge authorized the jury to find appellant had effective consent to enter the

home if it was given by a person he believed to be legally authorized to act for the

owner. If the jury found Roper consented to his entry and that he believed she was

legally authorized to act for the Prestons, it was authorized to find his entry was with

       3
        The instruction required also that, to be effective, the consent may not be
induced by force, threat or fraud or given by a person who by reason of youth, mental
disease or defect, or intoxication is known by the Defendant to be unable to make
reasonable decisions.

                                             6
effective consent. But the jury heard that version only in appellant’s written statements.

Neither appellant nor Roper testified. In the exercise of its role as the judge of the

credibility of witnesses, the jury was not required to believe appellant’s assertions in his

written statements.


       In support of his position, appellant cites Munns v. State, 412 S.W.3d 95 (Tex.

App.—Texarkana 2013, no pet.); Villanueva v. State, 711 S.W.2d 739 (Tex. App.—San

Antonio 1986), pet. ref’d per curiam, 725 S.W.2d 244 (Tex. Crim. App. 1987); Eppinger

v. State, 800 S.W.2d 652 (Tex. App.—Austin 1990, pet refused). We find each of these

cases inapposite and therefore of no help to appellant.


       Under the Jackson v. Virginia standard we find the evidence sufficient for a

rational jury to find beyond a reasonable doubt that appellant did not have the effective

consent of the owner to enter the Preston home. Appellant’s first issue is overruled.


Second Issue


       By his second issue, appellant argues the evidence was insufficient to link him to

two prior convictions for enhancement of punishment.


       The State sought enhancement of the punishment range by proof of two prior

felony convictions.4 Appellant plead not true to the alleged prior convictions so the

State assumed the burden of proof.         Its supporting evidence included appellant’s

       4
        In part relevant to this discussion, Penal Code section 12.42(d) provides if it is
shown on the trial of a felony offense that the defendant was previously convicted of two
felony offenses, and the second previous felony conviction was for an offense that
occurred subsequent to the first previous conviction becoming final, on conviction the
defendant shall be punished by imprisonment for life, or for any term of not more than
99 years or less than 25 years. TEX. PENAL CODE ANN. § 12.42(d).


                                             7
penitentiary packet or “pen packet,”5 admitted into evidence as State’s punishment

exhibit one, a card bearing appellant’s fingerprints taken on the morning of trial, marked

as State’s punishment exhibit two, and the testimony of a chief deputy sheriff with

training in fingerprint comparison.       The chief deputy took the set of appellant’s

fingerprints appearing on State’s exhibit two.


       State’s exhibit one, the pen packet, consists of the affidavit of the chairman of

classification and records for the Texas Department of Criminal Justice-Correctional

Institutions Division certifying the pen packet under the seal of the State of Texas; a

card bearing photographs of appellant along with his name and the number 651738;

nine judgments; and a fingerprint card.


       The pen packet contains the two judgments the State relied on for enhancement.

The first judgment is from the 22nd District Court of Hays County, Texas, bearing cause

number CR-92-590. The style of the case is “State of Texas vs. Ralph Pena Luera.”

The instrument states the defendant was convicted of burglary of a building and

sentenced to twenty years in prison. Sentence was imposed on December 21, 1992,

and the judgment was signed on the same date. The defendant’s name appears only in

the style of the case and the judgment contains no fingerprint or other information

otherwise identifying the defendant.


       The second judgment is from the 181st District Court of Potter County, Texas,

bearing cause number 62,535-B. The style of the case is “The State of Texas vs. Ralph

       5
        A “pen packet” is the document compiled by a prison official based on other
primary documentation received from the clerk of the convicting court. Flowers v. State,
220 S.W.3d 919, 923, n.14 (Tex. Crim. App. 2007); Cuddy v. State, 107 S.W.3d 92, 96
(Tex. App.—Texarkana 2003, no pet.).

                                              8
Pena Luera.” The instrument recites the defendant plead guilty to “evading arrest with

vehicle with previous conviction” and was sentenced by the trial court to two years in

prison and a $500 fine.        According to the judgment, sentence was imposed on

November 8, 2010, and the judgment was signed on November 10, 2010. On the

second page of the judgment, beneath the printed and cursively written name “Ralph

Luera,” appears a fingerprint designated “Defendant’s right thumbprint.” The front page

of the judgment also bears the notation “State ID No.: TX04637661,” which ID number

also appears on the pen packet fingerprint card.


       The chairman’s affidavit in the pen packet refers to “the attached information

provided on inmate Luera, Ralph, TDCJ/BPP# 651738. It further states “cause# . . .

CR92590(2 COUNTS) . . . 62535B, are true and correct copies of the original records

now on file in my office in the regular course of business . . . .” The copy of the Potter

County judgment was certified by the trial court clerk, but the Hays County judgment

bears no certification by the trial court clerk.


       According to the testimony of the chief deputy, once an individual sentenced to a

term of confinement reaches the penitentiary, his fingerprints are taken.            When

requested, the Department assembles the individual’s pen packet which includes the

inmate’s most recent fingerprint exemplar and all judgments in the Department’s

possession affecting him.


       Concerning his comparison of appellant’s fingerprints, the chief deputy testified to

the effect that the prints on the fingerprint card attached to the pen packet and the prints

of appellant appearing on State’s exhibit two were made by the same person. Later in



                                               9
testimony, the chief deputy affirmed, based on his comparison of the fingerprint card

attached to appellant’s pen packet, appellant is the same person convicted in the nine

judgments included in his pen packet.


       Appellant argues the Hays County judgment lacks sufficient information to

identify him as the defendant there convicted.       As for the Potter County judgment,

appellant contends that even though the pen packet copy was certified by the clerk of

the convicting court and contains the defendant’s fingerprint it fails to link appellant

because there was no trial evidence comparing the fingerprint appearing on the

judgment with a proven exemplar of appellant’s fingerprints.


       To sufficiently prove a defendant was convicted of a prior offense, the State must

establish the existence of a conviction and link the defendant to the conviction.

Flowers, 220 S.W.3d at 921; Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App.

1986). Ordinarily, a certified copy of a judgment, without more, is not sufficient to link a

defendant to a prior conviction. Beck, 719 S.W.2d at 210. Rather, the State’s burden

requires independent proof establishing the defendant is the same person named in the

prior conviction. Id. Proof may be established by “[i]ntroduction of certified copies of

the judgment and sentence and record of the Texas Department of Corrections or a

county jail including fingerprints of the accused supported by expert testimony

identifying them with known prints of the defendant.” Daniel v. State, 585 S.W.2d 688,

690-91 (Tex. Crim. App. 1979) (citations omitted), overruled on other grounds by Littles

v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1987) (op. on reh’g).




                                            10
      A pen packet is admissible to show a defendant’s prior criminal record provided it

is properly authenticated. Reed v. State, 811 S.W.2d 582, 586 (Tex. Crim. App. 1991)

(op. on reh’g); Bess v. State, No. AP-76,377, 2013 Tex. Crim. App. Unpub. LEXIS 334,

at *114-16 (Tex. Crim. App. Mar. 6, 2013) (not designated for publication) (citing Reed,

811 S.W.2d at 587-88), cert. denied, 134 S. Ct. 899, 187 L. Ed. 2d 788, 2014 U.S.

LEXIS 422, 82 U.S.L.W. 3405 (U.S. 2014); TEX. R. EVID. 901 & 902.


      Here, appellant’s pen packet was properly authenticated under Rule of Evidence

902(4) by the chairman’s affidavit.       Reed, 811 S.W.2d at 586.            Additionally,

authentication was proper under Rule of Evidence 901(a). See Reed, 811 S.W.2d at

587 (“The fact that the records are correct copies of those upon which [the Department]

relies in admitting and detaining prisoners at the state correctional facility constitutes

extrinsic evidence that the records are what the proponent claims them to be”).


      The Hays County judgment does not contain the defendant’s fingerprint. And the

chief deputy did not compare the fingerprint on the Potter County judgment with the

exemplar he took from appellant on the morning of trial.        Rather, the chief deputy

compared the prints contained on the fingerprint card attached to appellant’s pen packet

with those he took from appellant on the morning of trial. This procedure sufficiently

linked appellant to the Hays County judgment and the Potter County judgment.


      An examination of the packet indicates that it consists of certified copies of
      records of the Texas Department of Corrections pertaining to [the
      defendant], including the judgment and sentence in five separate
      convictions and one set of fingerprints. An expert witness testified that the
      fingerprints contained in the packet matched a set which he had taken
      from appellant on the same day. The fingerprints are used as a means of
      insuring that the person on trial is the same one to whom the packet



                                           11
       refers. The fingerprints refer to the packet as a whole. This method of
       proof has been consistently upheld by this Court.


Cole v. State, 484 S.W.2d 779, 784 (Tex. Crim. App. 1972); see Hallmark v. State, 789

S.W.2d 647, 651 (Tex. App.—Dallas 1990, pet. refused) (explaining the defendant’s

“fingerprint card in the pen packet refers to the pen packet as a whole” after stating

deputy sheriff testified that fingerprints in defendant’s pen packet matched the set he

took from defendant on the day of trial); Bridges v. State, No. 02-06-00418-CR, 2007

Tex. App. LEXIS 7529, at *15-17 (Tex. App.—Fort Worth Sept. 13, 2007, pet. refused)

(per curiam, mem. op., not designated for publication) (reviewing cases and holding one

set of fingerprints proved by expert testimony sufficiently referred to defendant’s entire

pen packet).


       On this record, the jury received sufficient evidence that appellant was the same

person convicted in the Hays County and Potter County judgments. Appellant’s second

issue is overruled.


                                       Conclusion


       Having overruled appellant’s two issues, we affirm the judgment of the trial court.




                                                 James T. Campbell
                                                     Justice


Do not publish.




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