      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-08-00508-CR



                                   Arturo Vargas, Appellant

                                                v.

                                 The State of Texas, Appellee


     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
            NO. CR21657, HONORABLE ED MAGRE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Arturo Vargas was arrested and charged with the crime of burglary of a habitation.

See Tex. Penal Code Ann. § 30.02(a) (West 2003) (listing elements for offense). Deputy

Jonathan Beathard was the investigating officer who arrested Vargas. Ultimately, a trial was

scheduled, and Vargas elected to have the jury determine his guilt and to have the district court

determine his punishment. The jury found him guilty. During the punishment hearing, the State

alleged, for punishment-enhancement purposes, that Vargas had been convicted of two prior

felonies: murder and manslaughter. See id. § 12.42(d) (West Supp. 2009) (elevating permissible

punishment range for repeat felony offenders). Vargas pleaded not true to the allegations, and the

State introduced evidence regarding the alleged prior crimes. At the end of the hearing, the court

found both allegations true and sentenced Vargas to 25 years’ imprisonment. On appeal, Vargas
challenges the district court’s determination regarding the alleged prior convictions. We will affirm

the judgment of the district court.


                                          DISCUSSION

               In one issue on appeal, Vargas contends that the evidence pertaining to the prior

felony convictions is “legally and factually insufficient to specifically link [him] to the prior

convictions for purposes of the enhancement allegations.”

               Before a prior conviction may properly be used to enhance a defendant’s punishment,

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

defendant is linked to that conviction.”1 Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App.

2007); see Davis v. State, 268 S.W.3d 683, 715 (Tex. App.—Fort Worth 2008, pet. ref’d). Although

the State must “show by independent evidence that the defendant” was the person previously

convicted, there is no specific manner by which the State must link prior convictions to a defendant.

See Beck v. State, 719 S.W.2d 205, 209-10 (Tex. Crim. App. 1986); see also Flowers, 220 S.W.3d

at 922 (explaining that “[a]ny type of evidence, documentary or testimonial, might suffice”).

Usually, the State will offer “certified copies of a judgment and a sentence and authenticated copies

of the Texas Department of Corrections records including fingerprints.” Beck, 719 S.W.2d at 209.

This type of information is often called a “pen pack,” Davis, 268 S.W.3d at 715, but the admission

of pen packs is “not normally sufficient standing alone . . . even if the name on the . . . pen packet

is the same as the defendant at trial,” see Beck, 719 S.W.2d at 210; see also Zimmer v. State,



       1
        On appeal, Vargas does not challenge the sufficiency of the evidence of the conviction.
Accordingly, we only address the second (linking) requirement.

                                                  2
989 S.W.2d 48, 50 (Tex. App.—San Antonio 1998, pet. ref’d) (noting need for evidence of identity

in addition to pen packs). For this reason, the State usually also offers additional linking

information. Although there is no exhaustive list for the methods by which the link may be

established, courts have identified several ways in which the link has been made, including the

following: admitting “expert testimony identifying” the fingerprints from the prior convictions “as

identical with known fingerprints of the defendant,” eliciting “testimony of a witness who personally

knows the defendant and the fact of his prior conviction and identifies him,” obtaining an admission

from the defendant, “matching a photograph of the defendant in a [pen pack] . . . to the defendant

at trial,” or using a combination of these methods. Beck, 719 S.W.2d at 209-10; Zimmer,

989 S.W.2d at 50.

                When determining the sufficiency of the evidence, courts must bear in mind

that the evidence used to link a prior crime to a defendant often “resembles a jigsaw puzzle.” Human

v. State, 749 S.W.2d 832, 835-36 (Tex. Crim. App. 1988) (op. on reh’g). Stated differently, “[t]he

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.”

Id. at 836. Moreover, the court must be aware that the “trier of fact fits the pieces of the jigsaw

puzzle together and weighs the credibility of each piece” and that “the trier of fact determines if these

pieces fit together sufficiently to complete the puzzle.” Flowers, 220 S.W.3d at 923; see also

Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (explaining that under factual-sufficiency

review, fact finder is sole judge of weight and credibility of evidence presented); Jones v. State,

944 S.W.2d 642, 647 (Tex. Crim. App. 1996) (noting that under legal-sufficiency review, trier of




                                                   3
fact is entitled to determine what weight to give any particular evidence, to resolve conflicts in

evidence, and to evaluate credibility of witnesses).

               In reviewing the legal sufficiency of the evidence presented at trial, a reviewing court

must view all of the evidence in the light most favorable to the State. Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009). The evidence is legally sufficient if based on “the totality of the

evidence,” the trier of fact could determine beyond a reasonable doubt that there was a previous

conviction and that the defendant was the one convicted. Flowers, 220 S.W.3d at 923. Unlike for

legal-sufficiency reviews, in factual-sufficiency determinations, all of the evidence is considered in

a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). The evidence is

factually insufficient only if it is so weak that the trial court’s determination “seems clearly wrong

and manifestly unjust” or if the determination is “against the great weight and preponderance of the

evidence.” Id. at 414-15.

               In this case, the State attempted to link Vargas to two prior convictions by admitting

the pen packs for those prior crimes and through the testimony of Vargas’s brother (Camilo Vargas)

and Deputy Beathard who investigated the burglary at issue in this case. The packs include the

judgments prepared for the prior crimes, photos of the individual adjudicated guilty in those crimes,

and biographical information for that individual. The first pack states that “Arturo Vargas” was

convicted of “voluntary manslaughter” in 1985. The second pack states that “Arturo Vargas” was

convicted of “murder” in 1980. Both packs specify that the convictions occurred in Milam County.

Further, both packets list the birthday for “Arturo Vargas” as “8-10-59.” In his testimony, Beathard

testified that Vargas was born on “8/10 of 1959.”



                                                  4
                Both packs also list the height for the individual convicted as 5’3”, and Beathard

testified that Vargas was approximately 5’3” tall. In addition, the first pack specifies that the

individual convicted weighed 133 pounds, and the second pack reveals that the individual convicted

weighed 128 pounds. When describing Vargas in his testimony, Beathard stated that Vargas

weighed “135 pounds” when he was arrested. Furthermore, both packs contain a signature from the

individual convicted (Arturo Vargas), and the State introduced two documents that Vargas signed

during the investigation of this case. The documents are a consent-to-search form and a Miranda

warning form.

                After the exhibits described above were admitted, Camilo was called to the stand.

In his testimony, Camilo admitted that Vargas had been to prison on two occasions and that he

thought that Vargas was sent to prison after having been convicted of murder and of voluntary

manslaughter. Specifically, Camilo’s testimony reads as follows:


       Q: And it’s true that your brother has been to prison twice before, isn’t it?

       A: I think, yes.

       Q: Okay. And do you know what that was for?

       A: Yes, ma’am.

       Q: And it was for murder and voluntary manslaughter, is that correct?

       A: I think so, yes.


                Although the State did not call a fingerprint expert to link the previous crimes to

Vargas, the State did link the prior crimes through the admission of the pen packs, through the

physical description of Vargas provided by Beathard, and through the testimony of Camilo stating

                                                 5
that Vargas had been previously convicted. See Davis, 268 S.W.3d at 716 (explaining that fact-

finder may consider prior convictions when “State offers conviction records into evidence and

establishes through the testimony of someone with personal knowledge that the defendant on trial

is the same person who was previously convicted”). In addition, although the signature block from

one of the pen packs had faded and was illegible, the district court had the benefit of the legible

signature block from the second pen pack and was free to compare that signature with the ones made

by Vargas on the consent form and the Miranda warning form. Finally and perhaps most

significantly, the district court also had the benefit of photos taken of the person adjudicated guilty

in the prior offenses and was able to compare the individual in those photos with Vargas, who was

seated before the court. Although Vargas correctly points out that Beathard testified that he “would

have a difficult time recognizing [Vargas] because of the age of this photograph versus the age of

[Vargas] now,” the district court was free to compare those images to Vargas. See Flowers,

220 S.W.3d at 925 (noting that judge could compare picture of person who committed prior crime

“to the person standing before him”).

                In light of the fact that the defendant from the prior offenses shares the same name,

birthday, and height as Vargas, in light of the nearly equivalent weight between Vargas and the

defendant from those prior crimes,2 in light of the testimony from Camilo demonstrating that Vargas


        2
          In his brief, Vargas contends that the fact that the weights in the pen packs are not identical
to Vargas’s weight at the time that he was arrested in this case weighs against a determination that
he was the person who committed the prior crimes. Vargas also engages in a piecemeal attack of
the other biographical information linking him to the prior convictions. Although he acknowledges
that he shares the same name and birthday as the individual previously convicted, he asserts that his
name and birthday are not uncommon. Accordingly, he argues that the identical names and birthdays
cannot properly link him to the prior crimes. Similarly, Vargas contends that although his recorded
height is the same as the individual described in the pen packs, that equivalence cannot help to

                                                   6
had been previously convicted of the same types of crimes alleged in the pen packs,2 in light of the



establish the necessary link because the height was not precisely measured and was, instead, rounded
to the nearest inch. For that reason, he contends that there could be a significant difference in height
between him and the individual previously convicted.

        However, as mentioned previously, each particular piece of evidence does not need to
dispositively link Vargas to the prior convictions; rather, the question is whether the cumulative
effect of all of the evidence together can establish the link. See Human v. State, 749 S.W.2d 832,
835-36 (Tex. Crim. App. 1988) (op. on reh’g). Accordingly, we must consider whether all of the
evidence provided, considered together, establishes a link beyond a reasonable doubt. Moreover,
although Vargas correctly points out that his weight and the weights listed for the individual
previously convicted are not identical, the district court was free to infer that an individual’s weight
can fluctuate over time and to determine that the similarity in the weights supports a conclusion that
Vargas was the individual described in the pen packs. Similarly, even assuming that the height
measurements were obtained in the manner asserted by Vargas, the district court was free to
conclude that the similarity in height weighed in favor of a determination that Vargas had been
convicted of the crimes alleged by the State.
        2
         Vargas also contends that Camilo’s testimony does not adequately link him to the prior
convictions because it, according to Vargas, only generally states that he had “been to prison, twice
before, for what [Camilo] thinks was murder and manslaughter.” Further, Vargas argues that the
testimony was inadequate because it did not adequately describe the prior convictions (e.g. date of
convictions) and did not state that Vargas had been convicted of the specific crimes listed in the pen
packs.

         This argument again ignores the fact that the sufficiency of the link is assessed by considering
all of the evidence. Although Camilo did not provide the specific information that Vargas mentions
in his brief, he did identify Vargas and did state that Vargas had previously been convicted of murder
and voluntary manslaughter. See Beck v. State, 719 S.W.2d 205, 209-10 (Tex. Crim. App. 1986)
(stating that link may be provided by testimony from witness who knows defendant and is aware of
prior convictions); Davis v. State, 268 S.W.3d 683, 716 (Tex. App.—Fort Worth 2008, pet. ref’d)
(noting that link to prior conviction may be established “through the testimony of someone with
personal knowledge that the defendant on trial is the same person who was previously convicted”).
The pen packs stated that an individual with Vargas’s name had been convicted of murder and
manslaughter, and the court was free to rely on the pen packs, Camilo’s testimony, and the other
evidence presented when determining that Vargas had been convicted of the crimes alleged by the
State. Moreover, Vargas’s argument ignores the fact that when establishing these types of links, the
State may use a combination of methods and that in this case the State also presented photographs
and handwriting samples to help establish the link. See Beck, 719 S.W.2d at 210; see also
Flowers v. State, 220 S.W.3d 919, 921-22 (Tex. Crim. App. 2007) (explaining that State may
establish link in “a number of different ways”).

                                                   7
fact that the prior convictions and the one at issue on appeal all occurred in Milam County, and in

light of the photographs and handwriting samples given to the district court, we must conclude that

regardless of whether the evidence is viewed in a neutral light or in the light most favorable to the

State, sufficient evidence was presented linking Vargas to the prior convictions alleged.

Accordingly, we overrule Vargas’s sole issue on appeal.


                                         CONCLUSION

                  Having overruled Vargas’s issue on appeal, we affirm the judgment of the

district court.




                                              David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: April 15, 2010

Do Not Publish




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