                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00063-CR
        ______________________________


         COURTNEY BENTON, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 349th Judicial District Court
               Houston County, Texas
             Trial Court No. 08CR-178




     Before Morriss, C.J., Carter and Moseley, JJ.
          Opinion by Chief Justice Morriss
                                                  OPINION

           In the process of pleading guilty to murder,1 Courtney Benton confessed that, in the early

morning hours of September 17, 2008, he shot and killed Steven McCullough in Houston County.2

Benton elected to have the jury assess his punishment.3 Benton appeals on the sole basis that the

admission of certain juvenile court judgments was improper because the State did not provide

evidence that he was the person reflected in those judgments. Because there was ample evidence

that Benton was the person named in those judgments, we affirm the judgment of the trial court.

           Certified copies of the records in question were admitted, over hearsay and relevance

objections,4 as Exhibits 82 and 83. On appeal, Benton claims error in the admission of the

juvenile court judgments because, it is alleged, there is no evidence linking Benton to those

judgments.5

1
    TEX. PENAL CODE ANN. § 19.02 (Vernon 2003).
2
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
3
 The jury returned a sentence of ninety-nine years’ imprisonment in the Texas Department of Criminal
Justice—Institutional Division.
4
 We understand Benton’s relevance objection to be that there was no evidence linking the admission of the prior
convictions to Benton, and therefore, the evidence was not relevant.
5
 At the trial on punishment, the State sought to introduce Benton’s Texas Youth Commission (TYC) records. Benton
objected to the introduction of the TYC records as hearsay and because they included copies of purported judgments.
The trial court ruled that the judgments would be redacted from the TYC records and determined to rule on the hearsay
objection outside the presence of the jury. Subject to these rulings, the TYC records were admitted. It appears from
the record that the juvenile court judgments at issue were not redacted from the TYC records. Certified copies of
these judgments were separately introduced and received into evidence as Exhibits 82 and 83. Further, the trial court,

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        ―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). No specific

document or mode of proof is required to establish these two elements. See id. However, proof

that the defendant merely has the same name as the person previously convicted is not sufficient to

satisfy the prosecution’s burden. See Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986).

The approved methods of proof of identity set forth in various cases are not exclusive and may

often include the use of a combination of methods. Id.

        In the instant case, State’s Exhibits 82 and 83 were generally admissible under Rule 902(4)

of the Texas Rules of Evidence because they consist of certified copies of public records, certified

as correct by their custodian, and, therefore, self-authenticating.                 TEX. R. EVID. 902(4).

However, for the State to satisfy the second prong of Flowers, it was required to present

independent evidence linking Benton to the juvenile judgments. See Beck, 719 S.W.2d at 210 (―It

is incumbent on the State to go forward and show by independent evidence that the defendant is

the person so previously convicted.‖); see also Davis v. State, 268 S.W.3d 683, 715 (Tex.

App.—Fort Worth 2008, pet. ref’d) (relevance of prior conviction is conditioned on production of

evidence sufficient to show same defendant in each case). Absent evidence linking the defendant


after having reviewed the proposed 200-page exhibit of TYC records, ruled that six pages of those documents would
be admitted. Those six pages were stapled and marked as State’s Exhibit 80. Exhibit 80 in the appellate record
includes all 200 pages of the TYC records. The erroneous inclusion of the entire set of TYC records has not been
raised as an issue on appeal; we therefore do not address it. TEX. R. APP. P. 38.1.

                                                       3
to the prior conviction, evidence of the prior conviction is not relevant. Menefee v. State, 928

S.W.2d 274, 278 (Tex. App.—Tyler 1996, no pet.). Whether sufficient links are present is

determined on a case-by-case basis. Human v. State, 749 S.W.2d 832, 835–36 (Tex. Crim. App.

1988). Further, the State may use circumstantial evidence to prove the defendant is the same

person named in the alleged prior convictions. Id. at 835–36, 839. The fact-finder looks at the

totality of the evidence to determine whether the State proved the prior convictions beyond a

reasonable doubt. Flowers, 220 S.W.3d at 923.

            At trial, the State presented certified copies of five judgments and related documents:6

                    (1) Judgment and stipulation of evidence in cause number 2003-00720J,
            dated March 6, 2003, reflecting Courtney Antoine Benton’s conviction for
            engaging in organized crime (theft of automobile), a first degree felony, on
            January 20, 2003, in Harris County. The judgment reflects that Benton was a
            juvenile at the time of the offense, lists his mother as Joycelyn Alexander (Benton),
            and lists Benton’s date of birth as April 11, 1987. The judgment and stipulation of
            evidence are signed by Courtney Antoine Benton;

                   (2) Corrected judgment in cause number 2003-00720J, dated April 17,
            2003. This judgment likewise reflects that Courtney Antoine Benton was a
            juvenile at the time of the offense, lists Benton’s mother as Joycelyn Alexander
            (Benton), and lists Benton’s date of birth as April 11, 1987;

                    (3) Judgment and stipulation of evidence dated July 25, 2003, reflecting
            violation of probationary rules by Courtney Antoine Benton related to cause
            number 2003-00720J. This judgment reflects that Benton was a juvenile, lists
            Joycelyn Alexander as Benton’s mother on the attached stipulation of evidence,
            and lists Benton’s date of birth as April 11, 1987.7 The judgment is signed by

6
    These are set out in two exhibits, numbered 82 and 83.
7
Exhibit 83 also includes a change of custody order in cause number 2003-00720J, dated August 22, 2003, placing
Courtney Antoine Benton in the custody of his mother, listed as Joycelyn Alexander.

                                                             4
       Courtney Benton and the stipulation of evidence is signed by Courtney Antoine
       Benton;

                (4) Judgment and stipulation of evidence dated September 30, 2003,
       reflecting violation of probationary rules by Courtney Antoine Benton related to
       cause number 2003-00720J. This judgment reflects that Benton was a juvenile,
       lists his mother as Joycelyn Alexander, and lists Benton’s date of birth as April 11,
       1987. The judgment and stipulation of evidence are signed by Courtney Benton;
       and

               (5) Judgment and stipulation of evidence dated November 25, 2003, in
       cause number 2003-09372J, reflecting Courtney Antoine Benton’s conviction for
       possession of a controlled substance, a class A misdemeanor, on November 13,
       2003, in Harris County. The judgment reflects that Benton was a juvenile at the
       time of the offense and lists his date of birth as April 11, 1987. The judgment and
       the stipulation of evidence are signed by Courtney Benton.

       Deborah Jones, Benton’s Houston County community supervision officer beginning in

August 2008, testified that her records indicated Benton’s date of birth as April 11, 1987. At trial,

the State played a video recording of Benton’s confession to McCullough’s murder. During the

course of his statement, Benton identified himself as Courtney Antoine Benton, states his date of

birth as April 11, 1987, and identifies his mother as Joycelyn Alexander.

       In addition, Officer Samuel Wagner with the Crockett Police Department testified that

Benton appeared at the Houston County Sheriff’s Department on the afternoon of September 17,

2008, and asked to speak to Wagner. During the course of his visit with Wagner, Benton

provided a written statement, identified by Wagner as State’s Exhibit 49, in connection with the

investigation of McCullough’s murder. This statement was signed by Benton, and Benton was

identified by Wagner at trial as the person who provided the statement. Wagner further testified


                                                 5
that he spoke with Benton a second time after Benton’s arrest September 19, 2008. At that time,

Benton provided a second written statement, identified by Wagner as State’s Exhibit 51. This

statement was likewise signed by Benton. Exhibits 49 and 51 each list Benton’s date of birth as

April 11, 1987.

       Benton contends there is insufficient evidence to link him to the prior convictions

contained in State’s Exhibits 82 and 83. We disagree. The prior convictions are linked to

Benton via (1) his name, ―Courtney Antoine Benton,‖ (2) his birth date of April 11, 1987, (3) his

mother’s name—Joycelyn Alexander (Benton), and (4) Benton’s signature, which appears on

Exhibits 49 and 51, the authenticity of which has not been contested.

       All pleadings filed in connection with Benton’s prosecution for McCullough’s murder

were styled using the name, ―Courtney Benton.‖ However, Benton stated that his full name is

Courtney Antoine Benton. The judgments and stipulations of evidence admitted at trial as State’s

Exhibits 82 and 83 are signed variously as ―Courtney Benton‖ and as ―Courtney Antoine Benton.‖

Generally, a name alone is insufficient to connect a defendant to a prior judgment. See Beck, 719

S.W.2d at 210. Here, we are not confronted with a name commonly encountered, a partial name,

or initials. We are provided with the appellant’s full name, an individual who was indicted in

Houston County, Texas, for a crime committed in Crockett, Texas. We take judicial notice that it




                                                6
is 115.95 miles from Crockett, Texas to Houston, Harris County, Texas, 8 where the prior

convictions were rendered. While the name alone is not the sole evidence connecting Benton to

the prior convictions, it is quite unlikely that another by the name of Courtney Antoine Benton was

convicted in Harris County, Texas, within the time frames listed in those prior convictions.9

            The second factor connecting Benton to the prior convictions is his date of birth. The

prior convictions each list Benton’s date of birth as April 11, 1987.                               Benton himself

acknowledges his date of birth as April 11, 1987; this is substantiated by Jones’ testimony as well.

We take judicial notice of the fact that, given Benton’s date of birth, he would have been a juvenile

at the time of the Harris County convictions in March and November 2003. 10 Both prior

convictions indicate that the Courtney Antoine Benton therein convicted was a juvenile.

            In addition to his name and date of birth, the identity of Benton’s mother connects Benton

to the prior convictions admitted as State’s Exhibit 82.11 The person identified as Benton’s

mother on the prior felony conviction is Joycelyn Alexander (Benton). The person Benton

identified as his mother—in the video recording of his confession played to the jury— is Joycelyn


8
 We may take judicial notice of facts which are notorious, well known, or easily ascertainable. See Gonzales v. State,
723 S.W.2d 746, 750 (Tex. Crim. App. 1987). This includes distances between two geographical locations. Bell v.
State, 63 S.W.3d 529, 532 n.3 (Tex. App.—Texarkana 2001, pet. ref’d).
9
    The prior convictions were entered in March and November 2003.
10
     Benton’s age at the time of the prior convictions is easily ascertainable. See Gonzales, 723 S.W.2d at 751.
11
 The prior misdemeanor conviction admitted as State’s Exhibit 83 does not identify a parent or guardian for Courtney
Antoine Benton.


                                                            7
Alexander.

            Finally, the prior convictions and stipulations of evidence comprising State’s Exhibits 82

and 83 are signed by the defendant variously as ―Courtney Benton‖ or ―Courtney Antoine

Benton.‖12 Benton’s signature appeared on State’s Exhibits 49 and 51, the written statements

Benton provided to Wagner. While the jury was not specifically requested to compare these

signatures with those appearing on the prior convictions, it is nevertheless ―competent to give

evidence of handwriting by comparison, made by experts or by the jury.‖ TEX. CODE CRIM.

PROC. ANN. art. 38.27 (Vernon 2005); see Zimmerman v. State, 860 S.W.2d 89, 97 (Tex. Crim.

App. 1993) (authentication of handwriting may be established by comparison performed either by

experts or by jury), vacated & remanded on other grounds, 510 U.S. 938 (1993). Exhibits 49 and

51 were admitted without objection and were available to the jury for signature comparison. The

jury was therefore free to compare the signatures appearing on Exhibits 49 and 51 (which were

never denied by Benton) with those appearing on the prior convictions to assist in the

determination of whether or not Benton was indeed the same individual listed in the prior

convictions.

            As a practical matter—while Benton objected to the admission of the prior convictions due

to claimed inadequate identification of the person so convicted—neither the State nor the defense

argued the identity issue to the jury. In fact, when counsel for Benton did mention the prior felony

conviction in closing argument, he stated,
12
     The corrected judgment included as part of State’s Exhibit 82 is not signed by the defendant.

                                                             8
       Now, the title to one of them is unanimous because it’s engaging in organized
       criminal activity. But if you will look, Courtney and several other youths, again,
       several years ago stole a car. That was it. And he pled guilty and took his
       punishment.




Moreover, in speaking of the prior misdemeanor conviction, counsel for Benton stated, ―The other

offense is a drug possession case, codeine. And he pled guilty to that.‖ A judicial admission

must be a clear, deliberate, and unequivocal statement. Horizon/CMS Healthcare Corp. v. Auld,

34 S.W.3d 887, 905 (Tex. 2000); Spradlin v. State, 100 S.W.3d 372, 380 (Tex. App.—Houston

[1st Dist.] 2002, no pet.). A judicial admission bars a party from disputing a fact and relieves his

adversary from having to present proof of the fact. Auld, 34 S.W.3d at 905. While the State does

not mention this argument in its brief, we find the foregoing statements on behalf of Benton to be

judicial admissions.

       Considering the totality of the evidence linking Benton to the prior convictions, even in the

absence of the foregoing judicial admissions, a rational jury could have found beyond a reasonable

doubt that Benton was indeed the same person identified in the prior convictions admitted via

State’s Exhibits 82 and 83.

       We affirm the judgment of the trial court.



                                                     Josh R. Morriss, III


                                                 9
                                          Chief Justice

Date Submitted:   February 3, 2011
Date Decided:     February 4, 2011

Publish




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