                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-13-00190-CR

CHRISTOPHER JAMES HENSLEY                                            APPELLANT

                                           V.

THE STATE OF TEXAS                                                        STATE


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             FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                          MEMORANDUM OPINION1

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                                     I. Introduction

         In a single issue, Appellant Christopher James Hensley appeals his felony

theft conviction. We reverse the trial court’s judgment, render a judgment of

misdemeanor theft, and remand the case to the trial court for a new punishment

trial.




         1
         See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      This is the case of the missing (evidentiary) link.

      Hensley was charged with theft of property of less than $1,500 with two

prior misdemeanor theft convictions. The two prior convictions alleged in the

indictment were an October 6, 2006 conviction in the County Criminal Court No.

6 of Tarrant County, in cause number 0954704, and a July 1, 1998 conviction in

County Criminal Court No. 7 of Tarrant County, in cause number 0684136.

      At trial, the State offered into evidence four exhibits—State’s Exhibits 4

and 5, which the trial court admitted into evidence and published to the jury, and

State’s Exhibits 6 and 7, which the trial court did not admit into evidence—that

together form the crux of Hensley’s complaint on appeal. State’s Exhibit 4 is a

certified copy of a July 1, 1998 theft conviction in cause number 0684136, listing

“Christopher James Hensley” as the defendant. State’s Exhibit 5 is a certified

copy of an October 6, 2006 theft conviction in cause number 0954704, listing

“Christopher James Hensley” as the defendant.

      State’s Exhibit 6 is an authenticated copy of a penitentiary packet

containing fingerprints, a mug shot, and a copy of a February 15, 2010 judgment

of conviction for possession of a controlled substance and theft with two previous

convictions in cause number F42981 (the “F42981 conviction”), indicating that

the defendant “Christopher James Hensley” pleaded guilty to the offense and

pleaded true to the enhancement paragraphs.           State’s Exhibit 7 includes a

certified copy of the same “F42981 conviction” found in State’s Exhibit 6;

                                         2
however, State’s Exhibit 7 also contains a copy of the indictment from the

“F42981 conviction,” which lists two theft enhancement paragraphs—one

alleging a prior theft conviction from October 6, 2006, in cause number 0954704,

and the other alleging a prior theft conviction from July 1, 1998, in cause number

0684136.2

      Granbury Police Detective Russell Grizzard, who fingerprinted Hensley on

the morning of trial, testified that fingerprints are an accepted method in the

scientific and law enforcement community to identify and classify people.

Detective Grizzard then testified that he had reviewed State’s Exhibits 6 and 7

that morning prior to testifying; that those types of documents are reasonably

relied upon by fingerprint identifying experts in his field for forming opinions or

inferences based on the subject of identity; that he had matched the fingerprints

in State’s Exhibit 6 to the fingerprints that he had taken from Hensley that

morning; that the “F42981 conviction” in State’s Exhibit 6 was the same

conviction found in State’s Exhibit 7; and that the case numbers listed in the

enhancement paragraphs of the indictment in State’s Exhibit 7 matched the case

numbers of the convictions in State’s Exhibits 4 and 5.        Detective Grizzard

opined that based on his review of the certified records, Hensley was the same




      2
       Although State’s Exhibit 6 contains identifiable fingerprints and mug shot
photographs from the defendant’s booking, the “F42981 conviction” in State’s
Exhibit 7 does not contain identifiable fingerprints, photographs, or a physical
description of the defendant.

                                        3
“Christopher James Hensley” that was listed on the judgments of conviction in

State’s Exhibits 4 and 5.3

      During cross-examination, Detective Grizzard admitted that he had not

used the fingerprints on State’s Exhibits 4 and 5 to identify Hensley because they

were too light and degraded. During redirect, Detective Grizzard stated that he

had instead used the fingerprints in State’s Exhibit 6, which he characterized as

very good.

      The State then called Granbury Police Officer Justin McGuire to the stand

and asked him to review a document from the court’s file titled “Indictment.”4

Officer McGuire testified that the case numbers listed in the indictment for the

two prior convictions matched the case numbers, dates of judgment, name,

offense, and courts listed on State’s Exhibits 4 and 5.5

      The jury found Hensley guilty as alleged in the indictment and assessed

his punishment at ten years’ confinement and a $10,000 fine, and the trial court

entered judgment on the verdict. This appeal followed.



      3
       Hensley repeatedly objected to Detective Grizzard’s testimony that
involved comparison to State’s Exhibits 6 and 7 on the grounds that they were
not admitted into evidence, but he did not object to Detective Grizzard’s
testimony falling outside the scope of rules of evidence 702, 703, or 705.
      4
       We infer that the document Officer McGuire was asked to review was the
indictment from the “F42981 conviction” found in State’s Exhibit 7.
      5
        Hensley’s objection that Officer McGuire’s testimony invaded the province
of the jury by answering a question of fact for the jury to decide was overruled by
the trial court.

                                         4
                                  III. Sufficiency

       In his sole issue, Hensley contends that the evidence was insufficient

during the guilt-innocence phase of trial to prove his two prior misdemeanor theft

convictions under penal code section 31.03(e)(4)(D). See Tex. Penal Code Ann.

§ 31.03(e)(4)(D) (West 2011 & Supp. 2013).             Specifically, he argues as

insufficient:   “(1) the judgments themselves, unaccompanied by independent

evidence tending to confirm identity; (2) the facially conclusory opinion of the

State’s fingerprint analyst; or (3) a comparison of cause numbers between the

judgments and those listed in the indictment in the instant case[.]”        Hensley

further complains that rule of evidence 703 does not license an expert to give a

wholly conclusory opinion in contravention of rule 702’s sufficiency standards.

A. Standard of Review and Applicable Law

       In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013). We must consider all the evidence admitted at trial,

even improperly admitted evidence, when performing a sufficiency review.

Winfrey, 393 S.W.3d at 767; Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim.

App. 2004). We must do so even in a case that we reverse and remand because

of error in the admission of evidence. Moff, 131 S.W.3d at 490.

                                         5
      A person commits an offense under penal code section 31.03 if he

unlawfully appropriates property with intent to deprive the owner of property.

Tex. Penal Code Ann. § 31.03(a) (West 2011 & Supp. 2013). An offense under

section 31.03 is a state jail felony if the value of the property stolen is less than

$1,500 and the defendant has been previously convicted two or more times of

any grade of theft.     Id. § 31.03(e)(4)(D).    When, as here, proof of a prior

conviction is a jurisdictional element, the fact of the prior conviction, including the

accused’s identity, must be proven beyond a reasonable doubt. See Zimmer v.

State, 989 S.W.2d 48, 50 (Tex. App.—San Antonio 1998, pet. ref’d).

      To establish that a defendant has been convicted of a prior offense, the

State must prove beyond a reasonable doubt that a prior conviction exists and

that the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919,

921 (Tex. Crim. App. 2007); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim.

App. 1986). “Regardless of the type of evidentiary puzzle pieces the State offers

to establish the existence of a prior conviction and its link to a specific defendant,

the trier of fact determines if these pieces fit together sufficiently to complete the

puzzle.” Flowers, 220 S.W.3d at 923.

      The court of criminal appeals has consistently held that the State may

establish the existence of a prior conviction by admitting certified copies of the

judgment. See Beck, 719 S.W.2d at 209; Paschall v. State, 285 S.W.3d 166,

174–75 (Tex. App.—Fort Worth 2009, pet. ref’d). However, certified copies of a

judgment are not normally sufficient standing alone to link the defendant to the

                                          6
prior conviction, “even if the name on the judgment and sentence and in the pen

packet is the same as the defendant in trial.” Beck, 719 S.W.2d at 210. Rather,

the State has the burden of proving that link by putting forth independent

evidence showing that the defendant is the same person named in the previous

convictions. See id. Typically, this link is proven by “admitting certified copies of

a judgment and a sentence and authenticated copies of the Texas Department of

Corrections (n/k/a Texas Department of Criminal Justice—Institutional Division)

records, including fingerprints, supported by expert testimony identifying them as

identical with known prints of the defendant.” Paschall, 285 S.W.3d at 174–75;

see Littles v. State, 726 S.W.2d 26, 31–32 (Tex. Crim. App. 1987) (en banc, op.

on reh’g).

      While this may be the preferred and most convenient way of establishing a

prior conviction and linking it to the defendant, the State may prove both of these

elements in a number of different ways, including: (1) the defendant’s admission

or stipulation, see Bryant v. State, 187 S.W.3d 397, 401 (Tex. Crim. App. 2005);

(2) testimony by a person who was present when the defendant was convicted of

the specified crime and can identify the defendant as that person, see Jones v.

State, 500 S.W.2d 661, 664–65 (Tex. Crim. App. 1973); or (3) documentary proof

(such as a judgment) included in the record that contains photographs or a

detailed physical description of a named person where the accused was present

in court for the fact finder to compare his appearance with that person described

in the record. See Littles, 726 S.W.2d at 31–32; Flowers, 220 S.W.3d at 922.

                                         7
B. Analysis

      Here, the State offered and the trial court admitted State’s Exhibits 4 and

5, which were certified copies of prior judgments for theft offenses. However,

neither of these exhibits contained an identifiable thumbprint, photograph, or

physical description of the named defendant.

      Attempting to link Hensley to the convictions in State’s Exhibits 4 and 5,

the State called Detective Grizzard as a fingerprint expert. He testified that he

had reviewed State’s Exhibits 6 and 7 that morning, that he had compared the

fingerprints contained in State’s Exhibit 6 with the ones he took from Hensley that

morning, and that he had concluded that they were a match. He further testified

that the “F42981 conviction” in State’s Exhibit 6 was the same judgment of

conviction found in State’s Exhibit 7.6 He then testified that the indictment in

State’s Exhibit 7 listed case numbers for two previous theft convictions that

matched the case numbers of the convictions found in State’s Exhibits 4 and 5.

      Based on his review of the documents, Detective Grizzard opined that

Hensley was the same individual as the person convicted in State’s Exhibits 4

and 5.    Thus, whether Hensley’s conviction may stand depends on whether



      6
       The record shows that Detective Grizzard’s opinion that the conviction in
State’s Exhibit 6 was the same conviction found in State’s Exhibit 7 was based
solely on his comparison of the cause number contained on the copies of the
judgment in each exhibit. Although he matched Hensley’s fingerprints to the
fingerprints contained in the pen packet (State’s Exhibit 6), State’s Exhibit 7 did
not contain any identifiable fingerprint, photograph, or physical description
capable of being used to identify Hensley as the person named in the conviction.

                                        8
Detective Grizzard’s testimony, standing alone, was sufficient to connect the

judgments of conviction in State’s Exhibits 4 and 5 to Hensley. Cf. Human v.

State, 749 S.W.2d 832, 838–39 (Tex. Crim. App. 1988) (holding identity evidence

sufficient when, despite “slight discrepancy” in the alleged cause number and

proved cause number, jail record’s fingerprints, photograph, and case number,

fingerprint expert’s testimony, and copy of the prior judgment proved that

appellant was the person named in the prior judgment).

      Neither party has directed us to any cases holding that an expert’s opinion

concerning documents not admitted into evidence, such as Detective Grizzard’s,

standing alone, is sufficient to connect the prior judgments of conviction to a

defendant, and we have not found any. See Prihoda v. State, 352 S.W.3d 796,

808–10 (Tex. App.—San Antonio 2011, pet. ref’d) (comparing identity cases

before concluding that evidence was insufficient to support prior conviction when

no evidence was introduced to show that appellant’s name was sufficiently

unique to allow trial court to rely on it as an evidentiary link and officer’s vague

response to a single question about a prior DWI would not enable the trial court

to link appellant to the prior conviction beyond a reasonable doubt); cf. Flowers,

220 S.W.3d at 924–25 (holding that a certified copy of a computer printout from

the Dallas County Clerk and a copy of appellant’s driver’s license record were

sufficient where the computer printout listed a prior DWI conviction and contained

personal descriptors, such as the date of birth, address, and social security

number, that matched the personal descriptors contained in appellant’s driver’s

                                         9
license record); Alvarez v. State, No. 08-11-00063-CR, 2013 WL 2285862, at

*14–15 (Tex. App.—El Paso May 22, 2013, pet. ref’d) (not designated for

publication) (holding as sufficient the two misdemeanor judgments from prior

convictions that each contained a fingerprint, the fingerprint card created that

morning by the State’s fingerprint expert, and the fingerprint expert’s testimony

that the fingerprints on the judgments matched the fingerprint card despite

appellant’s contention that the fingerprints on the judgment were smeared and

illegible); Rollins v. State, No. 10-11-00455-CR, 2012 WL 3799222, at *4–5 (Tex.

App.—Waco Aug. 30, 2012, pet. ref’d) (mem. op.) (holding that evidence of prior

conviction in cause number 07-3676-9064-E was sufficient, even though the

fingerprint on the judgment of conviction in that case was poor and expert was

unable to compare it with the appellant’s known fingerprints, because the other

prior judgment in cause number F35919—which had sufficient fingerprints—

referenced the guilty plea in cause number 07-3676-9064-E); Goains v. State,

No. 09-09-00503-CR, 2011 WL 4537892, at *4–5 (Tex. App.—Beaumont Sept.

28, 2011, pet. ref’d) (mem. op., not designated for publication) (holding evidence

sufficient to support prior conviction when, among other things, record contained

certified copies of judgments with appellant’s signature along with a signature

exemplar from his fingerprint card, fingerprint expert testified that fingerprint on

docket sheet included with one of the judgments belonged to appellant, and

driving record linked through appellant’s driver’s license at the time of the arrest

listed same birth date as docket sheet and same offenses); Turnbow v. State,

                                        10
No. 02-09-00438-CR, 2010 WL 4486223, at *4–6 (Tex. App.—Fort Worth Nov.

10, 2010, no pet.) (mem. op., not designated for publication) (holding evidence of

prior conviction sufficient when, even though judgment of conviction did not

display an identifiable fingerprint, certified copy of order modifying probation in

the same case had a fingerprint, which expert identified as appellant’s, and

certified DPS driving packet referenced part of same cause number and

contained appellant’s driver’s license photo).

      Here, the only evidence linking Hensley to the convictions in State’s

Exhibits 4 and 5 was Detective Grizzard’s testimony about his review of State’s

Exhibits 6 and 7. State’s Exhibit 6, which was not admitted into evidence, was

the only exhibit containing an identifiable fingerprint or photograph that could be

linked to Hensley by something other than his name or matching cause numbers.

Moreover, State’s Exhibit 6 does not contain any reference to the convictions in

State’s Exhibits 4 and 5. Instead, State’s Exhibit 6 was used to link Hensley to

State’s Exhibit 7—also not admitted into evidence—which contained an

indictment that referenced the two cause numbers of the convictions in State’s

Exhibits 4 and 5, but not a judgment with any identifiable fingerprints,

photographs, or a physical description of the named defendant. Instead, the only

thing linking Hensley to the judgment and indictment in State’s Exhibit 7 was

Detective Grizzard’s testimony that the cause number of that judgment matched

the cause number of the judgment in State’s Exhibit 6.



                                        11
      In discussing the commonly utilized methods for establishing that a

defendant has been convicted of a prior offense, the court of criminal appeals

stated, “Just as there is more than one way to skin a cat, there is more than one

way to prove a prior conviction.” Flowers, 220 S.W.3d at 922. Here, the State

attempted to “skin the cat” by the most commonly used method:            admitting

certified copies of a judgment and a sentence and authorized copies of the

defendant’s pen packet, including fingerprints, supported by expert testimony

identifying them as identical with known prints of the defendant. See id. at 921–

22; Beck, 719 S.W.2d at 209; Paschall, 285 S.W.3d at 174–75. However, the

State failed to properly effectuate this method and chose not to pursue an

alternative avenue of linking Hensley to the prior convictions.

      Detective Grizzard admitted that he was unable to compare the fingerprints

on State’s Exhibits 4 and 5 to Hensley’s fingerprints taken the morning of trial.

Further, State’s Exhibits 4 and 5 do not themselves contain any identifiable

information, such as photographs, fingerprints, or a physical description, that

could be used to link Hensley to the judgments. The State chose not to call any

witnesses who had personal knowledge that Hensley was the same defendant

named in State’s Exhibits 4 and 5, and Hensley provided no testimony that would

link him to the judgments.7       The cases cited by the State are factually

distinguishable and do not address the circumstances in this case.8


      7
        Hensley repeatedly refused to stipulate that he was the defendant named
in the prior convictions. At one point, the prosecutor exclaimed, “I just don’t see
                                         12
how the defense can take advantage of this issue, make the State prove its case
and then complain how the State’s proving it, especially when the State is
agreeing to stipulate to it.” While the prosecutor appeared genuinely surprised
by Hensley’s refusal to stipulate to identity, the State has the burden of proving
that a prior conviction exists and that it is linked to the defendant. See Flowers,
220 S.W.3d at 921.
      8
        The State argues that Detective Grizzard’s “expert opinion on a report not
in evidence was clearly admissible” under Martinez v. State, 22 S.W.3d 504, 508
(Tex. Crim. App. 2000). While we recognize that facts or data relied on by an
expert need not be admissible in evidence if they are the type reasonably relied
on by experts in that particular field, see Tex. R. Evid. 703, Martinez does not
stand for the proposition that an expert’s opinion is “clearly admissible” simply
because it can be based on inadmissible facts, and its facts are completely
inapposite here. At Martinez’s trial on a drug offense, a DPS lab supervisor
testified that he reviewed his subordinates’ report and then opined that the tested
substance was cocaine. Martinez v. State, 993 S.W.2d 751, 753, 757–58 (Tex.
App.—El Paso), rev’d, 22 S.W.3d at 509. The court of criminal appeals held that
although the expert relied on another’s report, which was not offered into
evidence, to form his opinion, his testimony was merely his present opinion of the
test results and thus not hearsay. Martinez, 22 S.W.3d at 508. In contrast, while
Detective Grizzard’s comparison of Hensley’s fingerprints required “scientific,
technical, or other specialized knowledge,” the only portion of his testimony
linking Hensley to State’s Exhibits 4 and 5 was his statement that the case
number in State’s Exhibit 6 matched the case number in State’s Exhibit 7, and
that State’s Exhibit 7 referenced case numbers matching those in State’s Exhibits
4 and 5. The exercise of comparing case numbers does not require scientific,
technical, or other specialized knowledge. Cf. Tex. R. Evid. 702; Leonard v.
State, 385 S.W.3d 570, 582 (Tex. Crim. App. 2012) (“Rule 703 is not a conduit
for admitting opinions based on ‘scientific, technical, or other specialized
knowledge’ that would not meet Rule 702’s reliability requirement.”); Vela v.
State, 209 S.W.3d 128, 135–36 (Tex. Crim. App. 2006) (“A jury should evaluate
credibility, but unreliable evidence should never make it to the jury.”).

       And although the State argues that Detective Grizzard’s testimony is
indistinguishable from similar testimony offered by a county attorney for the
purpose of proving prior convictions in Ward v. State, in that case, the State
introduced an indictment and a signed court order indicating Ward had been
placed on probation and called the county attorney present when the probation
order was signed, who testified that Ward was the same person identified in the
order. 505 S.W.2d 832, 837 (Tex. Crim. App. 1974). In contrast, Detective
Grizzard was not involved in the convictions contained in Sate’s Exhibits 4 and 5
                                       13
      Accordingly, based on the unique factual scenario present here and the

State’s failure to properly forge a link between Hensley and the two prior

convictions, we sustain Hensley’s sole issue.

                                  IV. Conclusion

      Having sustained Hensley’s sole issue, we reverse the trial court’s

judgment, render a judgment of misdemeanor theft,9 and remand the case to the

trial court for a new punishment trial.



                                                         PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and MEIER, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 15, 2014




nor personally familiar with Hensley’s prior criminal history, having met Hensley
for the first time that morning to take his fingerprints. Cf. id.
      9
        When a court of appeals concludes that evidence is insufficient to support
a conviction, it may reform the judgment to reflect conviction of a lesser included
offense if, as here, the evidence is sufficient to support conviction of the lesser
included offense, even if the jury was not charged on the lesser included offense.
Bowen v. State, 374 S.W.3d 427, 431–32 (Tex. Crim. App. 2012) (overruling
Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999)); see Thornton v. State,
No. PD-0669-13, 2014 WL 1302039, at *7 (Tex. Crim. App. Apr. 2, 2014); Britain
v. State, 412 S.W.3d 518, 521–22 (Tex. Crim. App. 2013) (applying Bowen).

                                          14
