                               MEMORANDUM OPINION
                                      No. 04-10-00815-CR
                                      No. 04-10-00816-CR
                                      No. 04-10-00817-CR
                                      No. 04-10-00818-CR

                                     Kasey WOODWARD,
                                           Appellant

                                                v.

                                     The STATE of Texas,
                                           Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
           Trial Court Nos. 2010-CR-1741, 2010-CR-1742, 2010-CR-1744, 2010-CR-1745
                             Honorable Sharon MacRae, Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Phylis J. Speedlin, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: November 2, 2011

AFFIRMED

           A jury found appellant, Kasey Woodward, guilty of aggravated assault, aggravated

assault on a public servant, and deadly conduct. Appellant elected to have the trial court assess

punishment. Appellant pleaded not true to two enhancement paragraphs; however, the trial court

found the enhancement paragraphs true and assessed punishment at fifty years’ confinement for
                                      04-10-00815-CR; 04-10-00816-CR; 04-10-00817-CR; 04-10-00818-CR


each case. In his sole issue on appeal, appellant challenges the legal sufficiency of the evidence

in support of the trial court’s finding that he was a habitual offender. We affirm.

                                          DISCUSSION

       For the purpose of finding appellant to be a habitual offender, the indictment alleged two

prior felony convictions for enhancement purposes:

       And it is further presented in and to said Court, that before the commission of the
       offense alleged [], hereafter styled the primary offense, on the 30th of JULY A.D.,
       1987, in Cause No. 1987CR1212, Bexar County, Texas, the defendant was
       convicted of the felony of AGG ROBBERY-DEADLY WPN

       Before the commission of the primary offense, and after the conviction in Cause
       No. 1987CR1212 was final, the defendant committed the felony of AG ASLT-
       SER BOD INJ-NONFAM-GUN and was convicted on the 3rd day of
       FEBRUARY, A.D., 1993 in Cause No. 1992CR2776, in Bexar County, Texas[.]

       As proof of these convictions, the State offered three exhibits into evidence at the

punishment phase: 2S, 3S, and 4S. State’s exhibit 2S is a pen packet which contains, among

other items, a 1987 Bexar County judgment of conviction under cause number 87-CR-1212 for

aggravated robbery with a deadly weapon. State’s exhibit 3S is also a pen packet which contains

a 1993 Bexar County judgment of conviction under cause number 1992-CR-2776 for aggravated

assault-serious bodily injury. State’s exhibit 4S is a copy of a docket sheet from cause number

1992-CR-2776 with a notation at the bottom of the sheet indicating that a notice of appeal was

filed. State’s exhibits 2S and 3S were admitted into evidence, but State’s exhibit 4S was not.

       Additionally, during punishment, the State called as a witness Gina Martinez for further

proof of appellant’s previous convictions. Martinez testified she is a fingerprint examiner with

the Bexar County Sheriff’s Office and that she matched appellant’s fingerprints to those in

State’s exhibits’ 2S and 3S. Also, because State’s exhibit 3S was a judgment for the offense of

aggravated assault-serious bodily injury and not the offense alleged in the indictment in the



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                                      04-10-00815-CR; 04-10-00816-CR; 04-10-00817-CR; 04-10-00818-CR


present case, Martinez also referred to State’s exhibit 4S (docket sheet) during her testimony.

She testified the docket sheet linked the cause number in both State’s exhibit 3S and in the

indictment, 1992-CR-2776, to the offense of “AG ASLT-SER BOD INJ-NONFAM-GUN.”

       Appellant does not challenge the finality of the conviction in cause number 87-CR-1212;

rather, appellant argues the State failed to establish the finality of the second alleged

enhancement, in cause number 1992-CR-2776, because the notation in State’s exhibit 4S

indicates an appeal was filed. Thus, appellant claims the State did not meet its burden of proving

the finality of that conviction. Alternatively, appellant asserts the State failed to prove a legally

valid conviction exists for cause number 1992-CR-2776 because the indictment indicates

appellant had previously been convicted for “AG ASLT-SER BOD INJ-NONFAM-GUN,” while

the documentation in State’s exhibit 3S suggests appellant was instead convicted of aggravated

assault-serious bodily injury.

       The “habitual offenders” subsection of the Texas Penal Code provides that if the

defendant

       has previously been finally convicted of two felony offenses, and the second
       previous felony conviction is for an offense that occurred subsequent to the first
       previous conviction having become final, on conviction the defendant shall be
       punished by imprisonment in the Texas Department of Criminal Justice for life, or
       for any term of not more than 99 years or less than 25 years.

TEX. PEN. CODE ANN. § 12.42(d) (West 2011). In order to establish a defendant’s conviction “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 State may use a number of different ways to prove these elements,

including: a defendant’s admission; testimony by a person present at the conviction of the

offense; and documentary proof. Id. at 921–22. Additionally, “[i]t is settled that the burden is

on the State to make a prima facie showing that any prior conviction alleged for enhancement, or
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for punishing an accused as a repeat offender, became final before the commission of the

primary offense, and once a showing is made, the burden shifts to the defendant to prove

otherwise.” Diremiggio v. State, 637 S.W.2d 926, 928 (Tex. Crim. App. 1982).

       Here, the State produced evidence that appellant was convicted of a prior felony in cause

number 1992-CR-2776 through State’s exhibit 3S.          Testimony by both Gina Martinez and

appellant, who testified in his own behalf in the guilt/innocence phase of the trial, linked him to

that conviction. Importantly, on cross-examination by the State, appellant not only admitted to

serving nine years for aggravated assault causing serious bodily injury in 1992, he also admitted

he appealed the conviction, but the appeal was denied. Thus, we conclude the State met its

burden of proving the conviction was final in cause number 1992-CR-2776 because appellant’s

own admission that the appeal was denied was enough for the trial court, as trier of fact, to

reasonably infer the conviction for that offense was final. See Laday v. State, 685 S.W.2d 651,

652 (Tex. Crim. App. 1985) (en banc) (finding that appellant’s testimonial admission during trial

that he was the same person who was “finally convicted” of a prior offense is enough to prove a

final conviction).

       Appellant also argues the State failed to prove there was a legally valid conviction for an

offense subsequent to appellant’s conviction for aggravated robbery in 1987. Appellant contends

a variance exists between the enhancement paragraph of the indictment and the proof presented

at sentencing. Specifically, the indictment states that appellant had previously been convicted

for “AG ASLT-SER BOD INJ-NONFAM-GUN” in cause number 1992-CR-2776, but the

documentation in State’s exhibit 3S (the pen packet from cause number 1992-CR-2776)

indicated appellant was instead convicted of aggravated assault-serious bodily injury. However,

“[i]t is well settled that it is not necessary to allege prior convictions for the purpose of



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enhancement with the same particularity which must be used in charging on the primary

offense.” Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986). The purpose of the

enhancement allegation is only to provide a defendant with sufficient notice of the prior

conviction. Rhodes v. State, 778 S.W.2d 187, 188–89 (Tex. App.—Beaumont 1989, no pet.).

Instead, an appellate court must look to whether the variance between what was alleged in the

indictment and the proof presented at trial caused prejudicial surprise to a defendant. Freda, 704

S.W.2d at 42.

       Here, appellant does not contend he was surprised or even misled to his prejudice. As

already mentioned, appellant admitted to the offense during the State’s cross-examination.

Similarly, the indictment correctly alleged: the date of the prior offense; the court returning the

conviction; the county of the convicting court; and the offense alleged was a felony. Thus,

appellant had proper notice of the alleged enhancement. Accordingly, we conclude there was

legally sufficient evidence to support the trial court’s finding that appellant was a habitual

offender.

                                        CONCLUSION

       We overrule appellant’s issue on appeal and affirm the judgment of the trial court.



                                                     Sandee Bryan Marion, Justice

DO NOT PUBLISH




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