                   Z19/5
             NO.
                                                 ORIGINAL

                   IN THE


       COURT OF CRIMINAL APPEALS


               OF TEXAS




           LUKE WAYNE HILTON

                    VS.                            FILED IN
                                           COURT OF CRIMINAL APPEALS
          THE STATE OF TEXAS
                                                   AUG 19 2015

           No- 14-14-00777-CR
                                                 Abel Acosta, Clerk
      IN THE COURT OF APPEALS FOR
THE FOURTEENTH COURT OF APPEALS DISTRICT
                OF TEXAS




PBTITIOH FOR DISCRBTIOHART REVIEW




                                LUKE   WAYNE   HILTON
                                Telford Unit ?
                                3899 State Hwy 98
                                New Boston/ Texas 75570


                                (Pro Se)



                                              RECEIVED IN
                                        COURT OF CRIMINAL APPEALS

                                                 AUG 18 2015


                                           AbeUcosta, Cleft
                                       INDEX




LIST OF AUTHORITIES         ..:    *                                ii


STATEMENT OF CASE             *                                     1

STATEMENT OF PROCEDURAL HISTORY.                 -..                2


GROUNDS FOR REVIEW                                 ....*         .,-2


   I.      DID THE COURT OF APPEALS ERROR IN HOLDING THAT
           THE EVIDENCE SUFFICIENTLY LINKED APPELLANT TO
           THE PRIOR CONVICTIONS?                                   2



REASONS FOR REVIEW                                          .-      2


STATEMENT REGARDING ORAL ARGUMENT...                                7

PRAYER FOR RELIEF                              .*....               7

APPENDIX            *                                             - -8

CERTIFICATE OF SERVICE                                              8
                           LIST OF AUTHORITIES




CASES                                                        Ea9es


Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007)       2,6
Elizalde v. State, 507 S.W.2d 749, 752 (Tx-Cr-App. 1974)         4
Alridqe v. State, 732 S.W.2d 395, 397 (Tex.App.-Dallas 1987).-....4
Franklin v. State, 227 S.W.2d 814, 815 (Tx.Cr.App. 1950)         4
Phariss v. State, 149 S.W.2d 1007 (Tx.Cr.App. 1946)....-      ..--5
Potter v. State, 128 S.W.2d 817 (Tx.Cr.App. 1939).                5
Beck v. State, 719 S.W.2d 205, 209 (Tx.Cr-App. 1986)              6




                                    li
                                NO.


                                       IN THE


                          COURT OF CRIMINAL APPEALS

                                      OF TEXAS




                              LUKE WAYNE HILTON


                                        VS.


                              THE STATE OF TEXAS




                    Petition in Cause No-     1408458 from the
               228th Judicial District Court of Harris County,
                Texas/ and No. 14-14-00777-CR "in the Court of
                 Appeals for the Fourteenth Court of Appeals
                              District of Texas




                   PBTITIOH FOR DJ.SCRETIOMARY REVIEW




TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:


   Luke Wayne Hiltdn petitions the Court to review the judgment and opinion
affirming conviction in Cause No- 1408458.


                             STATEHEHT OF CASE



   Appellant is appealing from judgment .and conviction for the felony offense
of burglary of a habitation and sentenced to 27 years imprisonment. The
petitioner, after a plea of not guilty, was found guilty by the jury, on
September 18, 2014. Appellant filed timely Notice of Appeal and was appointed
counsel. (OR. at 124).
                    STATEMENT OF PROCEDURAL HISTiDRY



  The Court df Appeals rendered its decision afMrming the judgment of the
trial court on June 23, 2015. Motion to extend time to file P.D.R. was
granted by this court. Time to file P.D.R. was extended to August 23, 2015-

                               GROOMD FOR REVIEW




   I,     Did the Court of Appeals error in holding that
          the evidence sufficiently linked Appellant to
          the prior convictions?


                               REASONS FOR REVIEW




   The Court of Appeals, did not correctly apply the standard to review
to estabUsh that adefendant has been convicted of aprior offense. The Court
of Appeals has decided an important question of state law in away that conflicts
with the decision of the Court .of Criminal Appeals in Flo-ers v. State. 220
 S.W.33 919, 921 (Tex.Crim.App- 2007)-

     The opinion of the Court of Appeals in this case notes that the evidence
 sufficiently linked appellant to the prior convictions. Tne jury, as * reasonable
 trier of fact, could have found appellant's enhancement paragraphs to be "true-
 beyond areasonable doubt. Tnerefore, the evidence is legally sufficient to
 support the jury's finding.

    Appellant argues that this indictment contains two enhancement paragraphs.
The first paragraph alleges that Hilton had been convicted in cause number 825876

of the felony offense of aggravated robbery.     The second paragraph alleges a

felony conviction for possession of a controlled substance in cause number 1194179.

Hilton pleaded not true to both paragraphs.


      The State offered into evidence Exhibit 21, Exhibit 22, Exhibit 29, and Exhibit

30.    Exhibit 21 is a judgment of conviction for the third degree felony offense

of possession of cocaine in cause number 1194179 with a sentence of 2 years in

the Institutional Division of the Texas Department of Criminal Justice. Exhibit 22

is a judgment of conviction in cause number 825876 for the first degree felony

offense of aggravated robbery with a sentence of nine (9) years in the Institutional

Division of TDCJ. Exhibit 29, called a jail card, contains the cause number 1194179

and a thumprint-    Exhibit 30, also a jail card, contains an illegible cause number

and a thumprint.


   Mr. Roy Reed took Hilton's fingerprints during the trial and compared them to

State's Exhibit 29 and State's Exhibit 30, certified copies of the jail cards

that contained existing fingerprints allegedly for Hilton.    In comparing the trial

fingerprints to those on the jail cards, Mr. Reed testified that they contain the

fingerprints of Mr. Hilton.    Mr. Reed also reviewed Dtate's Exhibit 21 and State's

Exhibit 22 which consisted of the judgments and sentences in cause numbers 1194179r
and 825876 respectively.    However, Mr. Reed was not able to compare the prints

on the documents with the prints he obtained jthat day from Mr. Hilton because the
prints on the documents were not clear enough.


   Although Mr- Reed testified that the cause number on State's Exhibit 22 was

the same as the cause number on State's Exhibit 30 and also that the cause number
on State's Exhibit 21 was the same as the cause number on State's Exhibit 29,
he was unable to explain the significance of the jail card. When questioned about
what a 3ail card is, he indicated that he had never worked in a jail and he did
not know. There is no evidence that the person whose fingerprints appear on the
jail record is the same as the person named in the records. In Daniel v. State,
585 S.W.2d 688, 689 (Tex.Crim.App. 1979), the witness testified that it is the
normal course of business in "booking-in" jail inmates for the Sheriff's office
to preserve on a "jail card" the name and brief description of the person, the
charge against him and "any number pertaining to that charge." Thereafter, the
jail card goes to the Identification Bureau where the person's right index finger
print is placed on the card. When the person is released from jail, another right
index fingerprint is placed on the card "to assure that the same person that
entered the jail is the same person that left." Absent such testimony, there is
no proof that the fingerprints on the cards are those of the person named on the
 cards- Elizalde v. State, 507 S-W.2d 749, 752 (Tex.Crim.App. 1974; see also
 Alridge v. State, 732 S.W.2d 395, 397 (Tex.App.-Dallas 1987, no pet.).
    In Franklin, the appellant was charged by information with the offense of
 transporting whiskey in adry county. The indictment further alleged that she
 had twice previously been convicted of like offense. Franklin v. State, 227 S-W.2d
 814, 815 (Tex.Crim.App. 1950). In its charge to the jury, the court authorized
 the enhancement of punishment in the event the jury convivted appellant and
 found that she had been so previously convicted. Id. It was stipulated that
 Yvonne Franklin and Viola Ducrest was one and the same person. Id. The State
 introduced into evidence certified copies of two judgments of conviction as described
in the indictment against Viola Ducrest. Id.    There was no testimony or stipula

tion that Yvonne Franklin was the same Viola Ducrest who was the defendant

in the previous convictions. Id.   In that case, the Court of Criminal Appeals

held that the certified copies of the judgments of conviction alone were not

sufficient to establish beyond a reasonable doubt that the enhancement paragraphs

were true. Id.


   In Phariss,to sustain the allegations of prior convictions, the State relied

alone upon a certified copy of the judgment of conviction.    Phariss v. State,
149 S.W.2d 1007 (Tex.Crim.App. 1946).    The Court of Criminal Appeals held that

this method was not sufficient - Id.    The accused must be identified as the one

and same person whd had been previously convicted.     See also Potter v. State,

128 S.W.2d 817 (Tex.Crim.App. 1939).     The facts being insufficient to sustain

the allegation of a prior conviction, the trial court erred in instructing the

jury as to the enhancement and the conviction was reversed and the case remanded

to the trial court.



   In this case, the State provided insufficient evidence to prove that the

individual whose name appeared on the jail card was the same individual who

provided the finger print.   The business records affidavit associated with the
jail cards alleged that according to the custodian of records from the Harris
County Sheriff's Department, the records were kept in the regular course of
business by an employee or representative with, "knowledge of the act, event,

condition, opinion, or diagnosis, recorded" and such recording was made "at

or near the time or reasonably soon thereafter." (CR. at 62).      When asked by

the State what a jail card is, Mr. Reed responded that he did not "know for sure"
because he "never worked in the jail." (5RR- at 9-10). In addition, Mr. Hilton s
finger prints obtained by Mr. Reed during trial were not admitted into evidence.
The jury could not have considered these prints in determining that the enhance
ment paragraphs were "True." Therefore, the jury could not have looked at the
jail cards and concluded that the fingerprints must be that of Mr. Hilton,
or the person named on the card.

   In viewing the evidence in the light most favorable to the State, no rational
trier of fact could have found beyond a reasonable doubt that the evidence was
sufficient to support the alleged prior convictions. The State failed to establish
that the fingerprints on the jail cards are those of the person convicted of
the offenses as alleged in the second and third paragraphs of the indictment-
Mr- Reed's testimony that the fingerprints on the jail cards match those of Mr.
Hilton taken at trial is insufficient to prove that the person named in the prior
convictions is the same person as Mr. Hilton. Because the evidence is insufficient
 to prove the two prior convictions as alleged in the indictment; this case
 should be reversed and remanded. See Flowers v. State, 220 S.W.3d 919, 921 (Tex-
 Crim.App. 2007); Beck v. State, 719 S.W.2d 205, 209 (Tex.Crim.App. 1986).

    If the Court of Appeals followed the standard set out by this Court in the
 Flowers case, then the appellant's conviction would be reversed due to review
 of legal sufficiency of the prior convictions.

    For all of the above reasons, the Court of Appeals did1 not correctly apply
 the standard to review sufficiency of the prior convictions as required by this
 Court in Flowers v. State,and the record reflects that acorrect application of
 the standard would result in reversal of the conviction. This Court should grant
Petition for Discretionary Review to encourage the Court of Appeals in the
Fourteenth District and other districts to correctly follow the standards set
out in the Flowers case, including the duty to prove that the defendant is the
same person convicted of the prior felonies, which will serve to provide
predicate for the enhancement of punishment, as in this case and as in the
Flowers case.


                   STATEMENT REGARDING ORAL ARGUMENT


   Appellant respectfully request oral argument in this case.

                             PRAYER FOR RELIEF




   For the reasons noted above, Petitioner Luke Wayne Hilton respectfully
prays that this Court grant this petition and upon reviewing the judgment and
opinion of the Court of Appeals entered below, reverse this cause and set aside
the judgment and sentence. Petitioner further respectfully prays for such other
and further relief to which he may be entitled under the laws and Constitution
of the United States of America and the laws and Constitution of the State of
 Texas*                                        Respectfully submitted,

                                               LUKE WAYNE HILTON #1956994
                                               Telford Unit
                                               3899 State Hwy 98
                                               New Boston, Texas 75570

                                               (Pro Se)
                                    APPENDIX




   True and correct copies of the Judgment and Opinion of the Court of Appeals

for the Court of Appeals for the Fourteenth Appellate District of Texas are

attached hereto-



                             CERTIFICATE OF   SERVICE




   This is to certify that copies of the above entitled and numbered Petition

for Review have been served upon both the District Attorney of Harris County,

Texas, and the State Prosecuting Attorney by delivery of a true copy to them by

mail, by depositing the same, post-paid in an official depository under the care

and custody of the U.S. Postal Service on the   \JP   day of•July 2015, and addressed

as follows:



Ms- Abigaile Anastasio
Assistant District Attorney
Harris County
SBN 24078142
1201 Franklin St., 6th fl-
Houston, Texas 77002


State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711



                                                Cuke wayne hilton
Affirmed and Memorandum Opinion filed June 23, 2015.




                                   In The


                  Jourteentlj Court at Appeals

                            NO. 14-14-00777-CR


                    LUKE WAYNE HILTON, Appellant

                                     V.

                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 228th District Court
                            Harris County, Texas
                       Trial Court Cause No. 1408458


                MEMORANDUM                   OPINION


      A jury convicted appellant Luke Wayne Hilton of burglary of a habitation
and found true two enhancement allegations. The jury sentenced appellant to
confinement for twenty-seven years in the Institutional Division of the Texas
Department of Criminal Justice. Appellant filed a timely notice of appeal. We
affirm.
      In his sole issue, appellant contends the evidence is legally insufficient to
support the jury's finding that he was previously convicted of the two alleged
enhancement offenses.

                              Standard of Review

      We    apply   a   legal-sufficiency   analysis   in   reviewing   punishment
enhancement, viewing the evidence in the light most favorable to the verdict and
determining whether a rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. See Jordan v. State, 256 S.W.3d 286,
289 (Tex. Crim. App. 2008); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim.
App. 2005). To establish that 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). The trier of fact must look at the totality of the
evidence admitted to determine whether those two elements were proven beyond a
reasonable doubt. Id. at 921,923.

                                     Analysis

      For punishment enhancement purposes, the State alleged appellant was
convicted of aggravated robbery in cause number 0825876 and possession of a
controlled substance in cause number 1194179. Appellant pleaded "not true" to
both allegations. To prove the first enhancement, the State presented a judgment of
conviction and a "jail card" for cause number 0825876 with a thumb print. To
prove the second enhancement, the State presented a judgment of conviction and a
"jail card" for cause number 1194179 with a thumb print. Roy Reed, a latent print
examiner for the Harris County Sheriffs Office testified that he compared the
appellant's prints to the prints on bothjail cards and they were a match. ' Reed also
testified that he could not compare appellant's prints to the judgments in each
cause number because they were not clear enough.

        Appellant contends that because Reed could not match appellant's prints to
the judgments, the evidence is legally insufficient. Appellant claims that the jail
card was not sufficient evidence to establish that appellant was the person
convicted in either cause number.

        The State may prove prior convictions through several means, one of which
is by the introduction of certified copies of the judgment and sentence and records
of the Texas Department of Corrections or a county jail including fingerprints of
the accused supported by expert testimony identifying the fingerprints of the
accused with known prints of the defendant. Rios v. State, 557 S.W.2d 87, 92 (Tex.
Crim. App. 1977). In Houser v. State, 762 S.W.2d 219, 220 (Tex. App.—Houston
[14th Dist.] 1988, pet. refd), the State introduced a certified copy of the judgment
and sentence in cause number 327,549, styled The State of Texas v. Douglas
Howard Houser. Id. The State also introduced testimony that the fingerprint taken
at the time the defendant was booked into jail on that offense matched a known
print of the defendant. Id. The defendant did not introduce any evidence that the
jail card was an unreliable county record. Id. This court concluded the evidence
•sufficiently linked appellant to the prior conviction. Id. See also Taylor v. State,
947 S.W.2d 698, 707 (Tex. App.—Fort Worth 1997, pet. refd) (concluding the
State established identity in the judgments and sentences in the two prior
convictions by admitting into evidence a jail fingerprint card that had the
defendant's fingerprints and the charges, by case number, of the two convictions).


        1Appellant's brief contends the cause number onthe jail card for the aggravated robbery
 conviction is illegible but Reed testified, without objection, it was 825876.
      For each previous offense in this case, the State introduced certified copies
ofthe judgment and sentence in each cause number and a jail card that had the
defendant's prints and the charge and cause number. The jail cards were admitted
into evidence as business records and were accompanied by an affidavit from the
custodian of records for the Harris County Sheriffs Department and were filed
with the court more than thirty days before trial. The State introduced testimony
that the fingerprint on each jail card matched aknown print ofappellant.
      We conclude that the evidence sufficiently linked appellant to the prior
convictions. See Flowers, 220 S.W.3d at 925. The jury, as a reasonable trier of
fact, could have found appellant's enhancement paragraphs to be "true" beyond a
reasonable doubt. See Castle v. State, 402 S.W.3d 895, 900 (Tex. App—Houston
[14th Dist.] 2013, no pet.). Therefore, the evidence is legally sufficient to support
the jury's finding and we overrule appellant's issue.
      The judgment ofthe trial court is affirmed.




                                       /s/    Tracy Christopher
                                              Justice




 Panel consists of Justices Christopher, Brown, and Wise.
 Do Not Publish — Tex. R. App. P. 47.2(b).
