AFFIRM; and Opinion Filed November 1, 2013.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-00559-CR

                                DONALD CAINE, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                   Dallas County, Texas
                           Trial Court Cause No. F11-31232-Y

                                         OPINION
                          Before Justices Bridges, Fillmore, and Lewis
                                  Opinion by Justice Fillmore
       A jury convicted Donald Caine of aggravated robbery, found two enhancement

paragraphs alleged in the indictment to be true, and assessed punishment of sixty years’

imprisonment. In three issues, Caine argues the evidence is insufficient to support the conviction

and the trial court erred by admitting evidence of two of Caine’s prior convictions and of a

photographic lineup. We affirm the trial court’s judgment.

                                          Background

       At approximately 7:00 p.m. on June 6, 2011, Clarence Powell (Powell) was parking his

car in the driveway leading to his house when he was approached by a man with a chrome

revolver. The man told Powell to give him his keys and wallet and to go into the house. Powell
was afraid the man was going to shoot him. The man with the revolver and two other men

followed Powell into the house. Powell was told to lie on the floor in the den.

       Mallex Powell, Powell’s seventeen-year-old son, and his two friends, Ryan Love and

Miles Jordan, were in the living room playing games on the computer. Mallex saw a man with

what appeared to be a black gun with a red laser dot coming from it. Mallex saw another man

behind the first. The man with the gun told the three boys to go into the other room. Thinking it

was a joke, Mallex did not immediately comply. The man then “pistol-whipped” Mallex with

the barrel end of the black gun. Mallex, Love, and Jordan went into the den where one of the

robbers hit Love with a pool “stick.” The three boys lay down on the floor, and the robbers tied

their hands behind their backs with cord.

       The robbers started hitting Powell on his back with pool “sticks,” demanding money and

drugs. Powell told them that they had all his money and he did not have any drugs. According

to Love, Caine was holding a silver revolver and started yelled that he was “going to kill one of

these younglings” if Powell did not tell them the location of the money. Love testified that he

thought he was going to die. The robbers searched the house and, in addition to the cash from

Powell’s wallet and Powell’s keys, took some rolls of coins from a safe, a ring, a bag of

prescription medications, and Powell’s and Love’s cellphones.

       Christopher Powell, Powell’s twenty-four-year-old son, was in his bedroom when he

heard a commotion. When Christopher opened his bedroom door, he heard a man saying to get

down or he would shoot. Christopher hid under his bed and called 9-1-1. Christopher testified

he was afraid the men were going to find him or were going to shoot his father and his brother.

       According to Mallex, at some point, the robbers realized the police were outside. The

robbers moved the boys into the garage and then back into the house. Christopher testified that

he left his bedroom and ran into one of the robbers in the hallway. This robber was wearing a

                                               –2–
football jersey with the number “19” on it. Christopher saw another robber in his father’s

bedroom. The robber in the hallway told Christopher to go into the kitchen. As he entered the

kitchen, Christopher saw Mallex, Love, and Jordan coming out of the garage with their hands

behind their backs. The robbers told Powell, Christopher, Mallex, Love, and Jordan to go into

Christopher’s room.

       Police officers Carlos Canelos and Jerry Bryant responded to Christopher’s 9-1-1 call.

Although nobody responded to their knocks on the door, the officers could hear sounds from the

house and see movement through the windows. Canelos kicked in the door to the house. When

he entered the house, he saw a man wearing a jersey with a number on it run out of the back of

the house. Canelos chased the man, but was unable to catch him.

       As Canelos ran out of the house, Bryant saw a man walking out of the hallway. Bryant

put handcuffs on the man and told him to lie on the floor. Bryant heard a noise from the hallway

and thought there might be more suspects. He found five people in a bedroom and confirmed

they were victims. When Bryant went back into the hallway, the man in handcuffs was gone. At

trial, Bryant identified Caine as the man he handcuffed in the hallway.

       Police officer Kevin Cox testified that he responded to the 9-1-1 call and began making a

perimeter search covering the blocks surrounding the house. As he was making concentric

circles around the neighborhood, he kept seeing the same red truck. It appeared the driver was

talking on the phone and was looking for somebody. The truck then pulled into a parking lot,

and the driver waved Cox over.

       When Cox approached the truck, he could see loose cash, rolls of coins, and “a couple of

cellphones” in the seat. Jimmie Ned, the driver, told Cox there had been a robbery in the area,

his girlfriend had given him a description of the robber, and he was looking for the robber.

Powell came to the parking lot where Ned was stopped and gave Cox his cellphone number.

                                               –3–
When the police dispatcher called the number, one of the cellphones in Ned’s possession began

ringing. A ring belonging to Powell was found in Ned’s pocket.

       Detective Heath Wester questioned Ned. Based on information obtained from Ned,

Wester questioned Quarteirrio Barker. Although both Barker and Ned initially denied any

involvement in the robbery, they ultimately admitted they participated in the robbery and

identified Caine as the other person involved.

       Christopher reviewed photographic lineups and identified Barker as the robber in the

hallway. He also positively identified Ned as the robber in his father’s bedroom, but was not as

certain of this identification as he was of his identification of Barker. Mallex also viewed

photographic lineups and identified Ned as one of the robbers. Love viewed photographic

lineups, but was able to identify only Caine. Love testified he got a “really good look” at Caine.

In viewing the photographic lineup, Love initially thought a different person in the lineup might

be the robber because that person looked bigger. However, he did not select that person and,

after thinking about it, identified Caine.

       Bryant also reviewed a photographic lineup and identified Caine as the man he

handcuffed in the hallway. At the time he viewed the lineup, Bryant was seventy percent

confident it was the same man. However, according to Bryant, he would not identify someone

unless he was certain of the identification. Bryant testified that he recognized Caine at trial and

that he was certain Caine is the man he saw in the hallway.

       Wester obtained an arrest warrant for Caine and a search warrant for his residence. When

officers entered Caine’s residence, they discovered a hole in the wall of a closet that opened into

the adjacent duplex. They found Caine hiding in a crawl space under a water heater in the

adjacent duplex. The police also found a key to a Mercedes in Caine’s residence. Powell

testified the Mercedes key was his key.

                                                 –4–
       At trial, Ned testified he had pleaded guilty to the robbery and identified Barker and

Caine as the other two men who participated in the robbery. Although Ned knew Barker prior to

the robbery, he had never met Caine prior to the robbery.              Caine said there would be

pharmaceutical drugs at the house. According to Ned, Caine provided two pistols; one was black

and one was chrome. Ned admitted that he approached Powell with one of the guns. Powell and

“three from the back” were told to lie on the floor. Ned testified they took rolls of coins, a ring, a

cellphone, and a bag of “prescription bottles” from the house. According to Ned, nobody in the

house was hit with a gun and there were no threats to kill anybody. When the police kicked the

door, Ned ran out of the house. He went to the side of his truck and pretended he was pouring

gas into the truck. He saw Barker run past him and an officer chasing Barker. He began driving

around the neighborhood looking for Barker. He was eventually stopped by a policeman.

       Barker testified he had pleaded guilty to the robbery and that Ned and Caine also

participated in the robbery. Barker has known Caine for twenty years and considers him to be a

family member. Barker confirmed that Ned approached Powell in the driveway with the gun.

Barker, who had a black gun with a “dot beam” on it, went into the back room and ordered the

young men in the room to move to the front of the house. Barker denied hitting anyone with the

gun, but admitted hitting Powell with a pool “stick.” Barker testified Ned threatened to kill

Powell if he did not provide the location of drugs and money. When the police kicked in the

door, Barker ran out of the back of the house. He hid in some bushes, and the officers did not

find him. Barker testified he was wearing a white and blue “Cowboys” jersey.

       The jury found Caine guilty of aggravated robbery, found the two enhancements alleged

in the indictment to be true, and assessed punishment of sixty years’ imprisonment.




                                                 –5–
                                  Sufficiency of the Evidence

       In his first issue, Caine asserts the evidence is insufficient to support the verdict because

it was based on accomplice witness testimony that was corroborated by only unreliable witness

identification. Article 38.14 of the code of criminal procedure provides a conviction cannot

stand upon accomplice testimony unless it is corroborated by other evidence that tends to

connect the defendant with the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005);

Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). The corroborating evidence is

insufficient if it merely shows the offense was committed. TEX. CODE CRIM. PROC. ANN. art.

38.14; Smith, 332 S.W.3d at 439. This rule reflects a legislative determination that accomplice

testimony implicating another person should be viewed with caution because accomplices often

have incentives to lie in order to avoid punishment or shift blame to another person. Smith, 332

S.W.3d at 439 (quoting Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)). An

accomplice is one who participated with the defendant before, during, or after the commission of

a crime with the requisite mental state. Smith, 332 S.W.3d at 439.

       In reviewing the sufficiency of corroborative evidence, we eliminate the accomplice

testimony from consideration and look to the remaining portions of the record to determine if

there is any evidence that tends to connect the defendant with the commission of the crime.

Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). We judge the sufficiency of the

non-accomplice evidence according to the particular facts and circumstances of each case.

Smith, 332 S.W.3d at 442; Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). The

corroborating evidence may be direct or circumstantial, and need not be sufficient by itself to

establish the defendant’s guilt. Smith, 332 S.W.3d at 442; Malone, 253 S.W.3d at 257. It is

sufficient corroboration if the combined force of all the non-accomplice evidence shows that

rational jurors could have found that it sufficiently tended to connect the defendant to the

                                               –6–
offense. Smith, 332 S.W.3d at 442. Therefore, “when there are two permissible views of the

evidence (one tending to connect the defendant to the offense and the other not tending to

connect the defendant to the offense),” we defer to the view of the evidence chosen by the jury.

Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009); see also Smith, 332 S.W.3d at

442. It is not appropriate for us to independently construe the non-accomplice evidence. Smith,

332 S.W.3d at 442.

          Caine contends the non-accomplice evidence was insufficient to corroborate Barker’s and

Ned’s testimony that Caine participated in the robbery. However, at trial, Love identified Caine

as one of the robbers, and Bryant identified Caine as the man he handcuffed in the hallway.

Further, shortly after the robbery, both Love and Bryant identified Caine from a photographic

lineup.     Although Caine argues that Love’s and Bryant’s identifications of him from the

photographic lineups were unreliable and insufficient to corroborate the accomplice evidence,

any uncertainty in either identification went to the weight of the evidence, not its admissibility.

See Simmons, 282 S.W.3d at 509 (witness’s uncertainty about whether voice of robber and voice

of defendant were same went to weight of testimony, not its inadmissibility).

          In addition to Love’s and Bryant’s identifications of Caine as one of the robbers, the State

offered evidence that a Mercedes key was found in Caine’s residence at the time of his arrest.

Powell testified this key was his Mercedes key. Caine’s unexplained possession of recently

stolen property permits an inference that he is the one who committed the robbery.                See

Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007) (It is a “well-settled rule that a

defendant’s unexplained possession of property recently stolen in a burglary permits an inference

that the defendant is the one who committed the burglary.”); Taylor v. State, 859 S.W.2d 466,

468 (Tex. App.—Dallas 1993, no pet.).




                                                  –7–
       We conclude a rational jury could have found that the non-accomplice evidence tended to

connect Caine with the robbery. Accordingly, Barker’s and Ned’s testimony that Caine was

involved in the robbery was sufficiently corroborated. We resolve Caine’s first issue against

him.

                                        Prior Convictions

       In his second issue, Caine asserts the trial court erred by admitting State’s exhibits 66 and

67, two of Caine’s prior convictions, into evidence during the punishment phase of the trial

because the evidence failed to sufficiently link those convictions to Caine.

       To establish that a defendant has been previously convicted, the State must prove, beyond

a reasonable doubt, both the existence of the prior conviction and that the defendant is linked to

that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). Texas law does

not require that the existence of a prior conviction or linking of the defendant to the prior

conviction be proven in any specific manner. Id. at 921–22. In making its proof, the State may

use “[a]ny type of evidence, documentary or testimonial.” Id. at 922. The existence of a prior

conviction and linking of the defendant to the prior conviction may be established by certified

copies of the prior judgment and sentence and records of the State containing fingerprints of the

individual previously convicted, supported by expert testimony identifying those fingerprints as

identical to known fingerprints of the defendant. See Vessels v. State, 432 S.W.2d 108, 117

(Tex. Crim. App. 1968) (op. on reh’g); see also Griffin v. State, 181 S.W.3d 818, 820 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d) (“Typically, the State will present fingerprints

included in the pen packet, have a fingerprinting expert take fresh fingerprints from the

defendant, and then conclude from comparison that the defendant on trial is the same person

convicted of the previous offense.”). Other methods of proving prior convictions include the

testimony of a witness who personally knows the defendant and the facts of his prior conviction

                                                –8–
and identifies him, or a stipulation or judicial admission of the defendant. See Beck v. State, 719

S.W.2d 205, 209 (Tex. Crim. App. 1986). The evidence offered could also include photographs

of the convicted individual for comparison with the defendant by the fact finder, or identification

information such as name, gender, height, eye color, hair color, and date of birth. See Williams

v. State, 946 S.W.2d 886, 895 (Tex. App.—Waco 1997, no pet.). The approved methods for

proof of identity set forth in various Texas appellate court opinions are not exclusive and may

often include the use of a combination of methods. Beck, 719 S.W.2d at 210. The State may use

circumstantial evidence to prove the defendant is the same person named in the prior conviction.

Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988) (op. on reh’g). The fact finder

looks at the totality of the admitted evidence to determine whether there was a previous

conviction and whether the defendant was the person convicted. Flowers, 220 S.W.3d at 923.

The court of criminal appeals has recognized that:

       ordinarily the 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 or
       convictions 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.

Human, 749 S.W.2d at 835–36.

       As to State’s exhibit 66, Deputy Willie Washington testified that she is employed in the

identification section of the Dallas County Sheriff’s Department.          During trial, she took

fingerprints from Caine and compared them to fingerprints on a number of prior convictions.

Washington testified that State’s exhibit 66 is a certified copy of a June 2, 1995 conviction of

Donald Alexander Caine for aggravated assault. The fingerprints on State’s exhibit 66 are the

same as the fingerprints Washington obtained from Caine during trial. We conclude the prior

conviction set out in State’s exhibit 66 was sufficiently linked to Caine, and the trial did not err

by admitting exhibit 66. See Vessels, 432 S.W.2d at 117; Griffin, 181 S.W.3d at 820.
                                                –9–
            As to State’s exhibit 67, Washington testified the exhibit is a prior conviction of Donald

Caine for Class A Misdemeanor Assault. 1 However, the fingerprints in exhibit 67 are not

readable. On its face, exhibit 67 states Donald Caine was convicted on February 2, 1995 in case

number F94-29229 out of the 291st Judicial District Court in Dallas County, Texas.

            State’s exhibit 65 is a conviction of Donald Alexander Caine on February 2, 1995 for

kidnapping. The case number of the conviction is F-9429227 and it is out of the 291st Judicial

District Court in Dallas County, Texas. State’s exhibit 66 is a conviction for Donald Alexander

Caine in case number F94-29226 and is out of the 291st Judicial District Court in Dallas County,

Texas. State’s exhibit 68 is a conviction of Donald Alexander Caine on February 2, 1995 for

robbery. The case number of the conviction is F94-29228, and it is out of the 291st Judicial

District Court in Dallas County, Texas. 2 Each of the judgments in State’s exhibits 65, 66, and 68

indicate the defendant pleaded guilty, was sentenced to two years’ imprisonment, and was

assessed a $500 fine.

            Washington linked the conviction for aggravated assault in State’s exhibit 66 to Caine by

comparing the fingerprints in that exhibit to Caine’s fingerprints. Exhibits 65 through 68 contain

four convictions for Donald Caine or Donald Alexander Caine out of the same court on the same

date. The convictions have consecutive case numbers. We conclude the evidence sufficiently

linked the conviction for misdemeanor assault to Caine, and the trial court did not err by

admitting State’s exhibit 67. See Human, 749 S.W.2d at 835–36. We resolve Caine’s second

issue against him.




     1
       The prosecutor incorrectly referred to this conviction as “Exhibit 66.” A review of the exhibits demonstrates Washington was testifying
about State’s Exhibit 67.
     2
         Caine has not complained on appeal about the admission into evidence of State’s exhibits 65 and 68.



                                                                      –10–
                                     Photographic Lineup

       In his third issue, Caine contends the trial court erred by admitting into evidence the

photographic lineup viewed by Bryant because the lineup was not relevant. We review a trial

court’s rulings on the admissibility of evidence under an abuse of discretion standard. Billodeau

v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009); Cameron v. State, 241 S.W.3d 15, 19 (Tex.

Crim. App. 2007). We must affirm the trial court’s ruling so long as it lies within the zone of

reasonable disagreement. Billodeau, 277 S.W.3d at 39. In other words, we must uphold the trial

court’s ruling if it “was correct on any theory of law applicable to the case, in light of what was

before the trial court at the time the ruling was made.” Page v. State, 213 S.W.3d 332, 337 (Tex.

Crim. App. 2006) (quoting Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)).

       Caine first argues the lineup was not relevant because there was no testimony as to why

Caine’s picture was included in the lineup. At trial, Caine objected to the lineup based on

relevance because “[t]his is not positive identification.” Caine did not object to the admission of

the lineup on the basis there was no evidence as to why Caine’s picture was included in the

lineup. Accordingly, Caine has waived this basis for his objection on appeal. See TEX. R. APP.

P. 33.1(a)(1)(A); Clark v. State, 365 S.W.3d 333, 339–40 (Tex. Crim. App. 2012) (holding that

appellant failed to preserve complaint for review when trial objection did not comport with issue

raised on appeal).

       Caine also contends the lineup was not relevant because Bryant’s identification of Caine

in the lineup was tentative. Evidence is relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” TEX. R. EVID. 401. The photographic lineup and

Bryant’s identification of Caine in the lineup have a tendency to make Caine’s identity as the

third robber more probable than it would be without the evidence. Therefore, the lineup was

                                              –11–
relevant. See id. 3 Further, any uncertainty by Bryant in his identification of Caine in the

photographic lineup would go to the weight to be afforded the evidence rather than to its

admissibility. See Shamam v. State, 280 S.W.3d 271, 276 (Tex. App.—Amarillo 2007, no pet.).

We resolve Caine’s third issue against him

          We affirm the trial court’s judgment.




                                                                       /Robert M. Fillmore/
                                                                       ROBERT M. FILLMORE
                                                                       JUSTICE



Do Not Publish
TEX. R. APP. P. 47

120559F.U05




     3
       See also Morgan v. State, No. 05-09-00173-CR, 2010 WL 1224318, at *4 (Tex. App.—Dallas Mar. 31, 2010, no pet.) (not designated for
publication).



                                                                –12–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DONALD CAINE, Appellant                            On Appeal from the Criminal District Court
                                                   No. 7, Dallas County, Texas,
No. 05-12-00559-CR        V.                       Trial Court Cause No. F11-31232-Y.
                                                   Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                       Justices Bridges and Lewis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 1st day of November, 2013.




                                                   /Robert M. Fillmore/
                                                   ROBERT M. FILLMORE
                                                   JUSTICE




                                            –13–
