
COURT OF
APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO.
2-02-021-CR
 
JUAN ARGELIO ARAGON                                                        
APPELLANT
V.
THE STATE OF TEXAS                                                                
STATE
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FROM THE 213TH
DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. Introduction
A jury convicted Appellant Juan Argelio Aragon of burglary of a building,
found two prior felony convictions alleged for enhancement purposes to be true,
and assessed Aragon's punishment at twenty years' confinement and a $10,000
fine. In five issues on appeal, Aragon claims the trial court erred by admitting
a set of Florida penitentiary packet documents at punishment, and also erred by
admitting alleged burglary tools, photographs of the crime scene, and
photographs of recovered items during the trial on guilt-innocence. We will
affirm.
II. Background Facts
At approximately 2:30 a.m. on July 1, 2001, Douglas Christopher Wright, a
resident of the Overlook Apartments in Euless, heard noises outside and walked
out onto his balcony to investigate. He saw a man in dark clothes sitting below
in the complex's pool area. Wright watched as the man entered the weight room
that adjoined the apartment office and returned carrying computer equipment. He
walked around the office building out of Wright's view. When the man returned to
the pool area empty-handed, Wright called 911.
Wright saw a second man, wearing a red shirt, inside the office building
carrying more computer equipment. The man in red carried the computer equipment
outside, exited through the gate surrounding the pool area, and walked around
the office building out of Wright's line of sight. Shortly thereafter, the man
in red came running out of the office building again and told his companion that
the police had arrived. The man in red then ran toward Wright, hurdled the gate,
and fled toward the parking lot with a police officer in hot pursuit. Within
minutes, the police officer captured the man in the red shirt, returned to the
pool area, and placed him in handcuffs. Wright then went to talk with the police
and saw both men in custody near a compact car that had computer equipment in
its trunk.
Euless Police Officer Jermaine Montgomery testified that he was dispatched to
a burglary in progress at the Overlook Apartments at approximately 2:30 a.m. on
July 1, 2001. He arrived almost immediately and two residents directed him
toward the front office. Officer Montgomery saw a man in a red shirt, later
identified as Aragon, inside the office carrying a computer monitor down the
stairs. When Aragon saw Officer Montgomery, he dropped the monitor and ran back
up the stairs. Officer Montgomery and Officer Chris White, who had just arrived
on the scene, pursued Aragon. Officer White jumped the fence surrounding the
pool area, chased Aragon, and captured him after a brief scuffle. During a
pat-down search of Aragon incident to his arrest, Officer White recovered a
plastic Secura key, a Stanley box-cutting knife, and two screwdrivers.
Meanwhile, Officer Montgomery found Aragon's associate hiding inside a U-Haul
truck in the apartment complex parking lot and arrested him. A pat-down search
of this man turned up another screwdriver and a pair of wire-cutters. Police
later found a crowbar inside the apartment complex's office.
Police called the apartment complex manager, Emma Jean Walker, and asked her
to come to the complex. She arrived at approximately 3:00 a.m., conducted a
walk-through of the ransacked office with police, and identified the computer
equipment found in the car trunk as belonging to the apartment complex.
III. Florida Felony Convictions
In his first three issues, Aragon complains that the trial court erred during
the punishment phase by admitting a set of Florida penitentiary records
("pen packet") to prove his two prior felony convictions. Aragon
claims that the papers admitted as part of the Florida pen packet do not prove
that his prior convictions were felonies.
In Texas, the punishment for a state jail felony may be enhanced to that of a
second degree felony if the defendant "has previously been finally
convicted of two felonies, and the second previous felony conviction is for an
offense that occurred subsequent to the first previous conviction having become
final." Tex. Penal Code Ann. § 12.42(a)(2) (Vernon 2003). Convictions
obtained other than by prosecution under the Texas Penal Code are classified as
third degree felonies and consequently may qualify to be used for enhancement
purposes under section 12.42(a)(2) "if imprisonment in a penitentiary is
affixed to the offense as a possible punishment." Id. § 12.41(1).
Burglary of a building, the offense for which Aragon was convicted in this
instance, is punishable as a state jail felony and may, therefore, be enhanced
to a second degree felony by proof of prior convictions pursuant to penal code
section 12.42(a)(2). Id. § 12.42(a)(2); Tex. Penal Code Ann. §
30.02(c)(1); Tex. Penal Code Ann. § 12.35(a). Utilizing this enhancement
option, Aragon's indictment alleges:

State Jail Felony Enhanced to 2nd Degree Notice: And it is
  further presented to said court that prior to the commission of the state jail
  felony or state jail felonies set out above the said, Juan Argelio Aragon,
  under the name of Jose Garcia Miguel, was finally convicted of the felony
  offense of battery on law enforcement officer in the seventh judicial circuit
  court of Volusia County, Florida, in cause number 85-1155-C on the 16th
  day of April, 1986, and prior to the commission of the offense or offenses for
  which the defendant was convicted as set out above, the said, Juan Argelio
  Aragon, under the name of Juan Argelio Monroig was finally convicted of the
  felony offense of grand theft, in the eleventh judicial circuit court of Dade
  county, Florida in cause number 84-1790 on the 19th day of March,
  1984.

The judgments in the pen packet reflect Aragon's convictions for grand theft
in Dade County, Florida (cause number 84-1790) and for battery on a law
enforcement officer in Volusia County, Florida (cause number 85-1155-C), both
felony offenses under Florida law. The documents in the pen packet show that
Aragon pleaded nolo contendere to the grand theft charges and on March 19, 1984,
and was sentenced to eight years' confinement. While he was incarcerated, on
March 13, 1985, Aragon assaulted a law enforcement officer at the correctional
institution. He was charged with battery on a law enforcement officer, pleaded
guilty, and on April 16, 1985, was sentenced to five years' confinement to run
consecutively following his completion of his grand theft sentence. Thus, the
grand theft offense was final when Aragon committed the battery offense on March
13, 1985, almost a year after he began serving his grand theft sentence.
Because Aragon was sentenced to imprisonment in the penitentiary for both the
grand theft offense and the battery offense and because the grand theft offense
was final prior to Aragon's commission of the battery offense, we hold that the
trial court properly characterized these offenses as felonies eligible for use
to enhance Aragon's burglary offense to a second degree felony. Tex. Penal Code.
Ann. §§ 12.41(1), 12.42(a)(2); see also Trotti v. State, 698 S.W.2d
245, 246 (Tex. App.--Austin 1985, pet. ref'd) (holding defendant's conviction in
South Carolina of housebreaking and larceny, for which defendant was assessed
five years in penitentiary, lawfully used to enhance defendant's punishment
pursuant to penal code section 12.41(1)). We overrule Aragon's first issue.
In his second issue, Aragon complains that the Florida pen packet was not
properly authenticated because it lacks an affidavit comporting with the Texas
evidentiary rules. See Tex. R. Evid. 901, 902. Rule 902 states in
pertinent part:

Extrinsic evidence of authenticity as a condition precedent to
  admissibility is not required with respect to the following:
. . . .
        (4) Certified Copies of
  Public Records. A copy of an official record . . . certified as
  correct by the custodian or other person authorized to make the certification,
  by certificate complying with paragraph (1), (2) or (3) of this rule or
  complying with any statute or other rule prescribed pursuant to statutory
  authority.

Tex. R. Evid. 902. Paragraph (1) of the rule provides that a document
certified in accordance with paragraph (4), above, will be self-authenticating
if it bears "a seal purporting to be that of the United States, or of any
state, . . . or of a political subdivision, department, officer, or agency
thereof, and a signature purporting to be an attestation or execution." Id.
The first page of the Florida pen packet bears the insignia of the Florida
Department of Corrections and the certification, signature and seal of the
correctional services administrator. The attestation reads:

I, JOYCE HOBBS, CORRECTIONAL SERVICES ADMINISTRATOR, CENTRAL RECORDS, STATE
  OF FLORIDA DEPARTMENT OF CORRECTIONS, DO HEREBY CERTIFY THE ATTACHED DOCUMENTS
  TO BE CORRECT COPIES OF DOCUMENTS IN THE FILE OF MIQUEL
  J. GARCIA a/k/a MIGUEL J. GARCIA a/k/a ANTONIO REGALDO, DC # 080680
  AS THE SAME APPEARS IN THE OFFICIAL RECORDS IN THIS OFFICE.
GIVEN UNDER MY HAND AND SEAL, THIS 17TH DAY OF JULY, A.D., 2001.

In addition, the Department of Corrections's identification number listed on
the certification, number 080680, appears on the face of the Uniform Commitment
to Custody form, which precedes each judgment and sentence contained in the pen
packet. The same number also appears on the last two pages of the pen packet,
which display all ten of the inmate's fingerprints as well as his photograph. We
hold that the certification of the correctional services administrator, bearing
her signature and seal under the authority of the Department of Corrections of
the state of Florida, is sufficient to authenticate the penitentiary packet at
issue in this case. See Reed v. State, 811 S.W.2d 582, 587 (Tex. Crim.
App. 1991) (op. on reh'g) (holding certification by records' custodian of a set
of copies of the original judgment and sentence sufficient extrinsic evidence
that the copies are authentic). We overrule Aragon's second issue.
In his third issue, Aragon argues that the trial court erred by overruling
his motion for directed verdict as to the enhancement paragraphs because there
is insufficient evidence as a matter of law to prove that Aragon is the same
person named in the Florida pen packet. A fingerprint expert's testimony that
the defendant's fingerprints match fingerprints contained in a pen packet
constitutes sufficient evidence to show that the defendant is the same person
previously convicted and named in the pen packet documents. Littles v. State,
726 S.W.2d 26, 31 (Tex. Crim. App. 1987) (op. on reh'g); Alvarez v. State,
536 S.W.2d 357, 361 (Tex. Crim. App.), cert. denied, 429 U.S. 924
(1976) (op. on reh'g).
Here, Deputy Charles Kaiser, an identification officer and fingerprint
expert, took Aragon's fingerprints following the burglary of the Overlook
Apartments. He compared Aragon's fingerprints with the prints contained in the
Florida pen packet relating to the grand theft judgment and the battery judgment
and concluded with one hundred percent certainty that Aragon was the same
individual previously convicted of these offenses based on the pen packet
documents. The fingerprint evidence and testimony sufficiently established that
Aragon was the same person named in the Florida pen packet. See,
e.g., Moore v. State, No. 12-00-00069-CR, slip op. at 7, 2001 WL
34039125, at *3, (Tex. App.--Tyler Aug. 31, 2001, pet ref'd), cert. denied,
123 S.Ct. 259 (2002). We overrule Aragon's third issue.
IV. Admissibility of Crime Scene Photographs and Burglary
Tools
In his fourth issue, Aragon complains that the trial court erred at the
guilt-innocence phase by admitting into evidence photographs of the crime scene
and items seized from him at the scene. He asserts that these items were
cumulative, more prejudicial than probative, and offered for the sole purpose of
unduly prejudicing and inflaming the minds of the jury. See Tex. R.
Evid. 401, 403.
An appellate court's function is not to superimpose its own judgment as to
relevance over that of the trial court. Montgomery v. State, 810 S.W.2d
372, 391 (Tex. Crim. App. 1990) (op. on reh'g). Instead, we review a trial
court's rulings on the admissibility of evidence under an abuse of discretion
standard. Id. As long as the trial court's ruling was within the zone
of reasonable disagreement, we will not intercede. Id.
A photograph is generally admissible if verbal testimony as to matters
depicted in the photograph is also admissible. Williams v. State, 958
S.W.2d 186, 195 (Tex. Crim. App. 1997). In addition, items identified as having
come from the burglarized premises are generally admissible in a burglary
prosecution. See Ellard v. State, 509 S.W.2d 622, 625 (Tex. Crim. App.
1974); Baird v. State, 156 Tex. Crim. 644, 646, 246 S.W.2d 192, 194
(Tex. Crim. App. 1951) (holding firearms and screwdriver identified by owner as
property stolen from hardware store properly admitted in evidence); see also
Overton v. State, 490 S.W.2d 556, 560 (Tex. Crim. App. 1973) (noting that
where a witness testifies that an item appears to be the same item taken during
an offense, the proper predicate is laid for admission of that item into
evidence).
Here, the court admitted into evidence photographs depicting the apartment
office in a state of disarray, computer equipment unplugged and strewn about the
building, and additional computer equipment in the open trunk of a nearby car.
Emma Walker, manager of the Overlook Apartments, pointed out on the crime scene
photographs the bare desks where computer equipment had been located before the
burglary. She identified the computer equipment found in the trunk of the car as
property taken from the apartment office. The photographs Aragon complains of
supplemented Walker's testimony and aided the jury in determining whether and
how the charged burglary took place. Hence, the trial court did not abuse its
discretion by admitting the photographs into evidence. We overrule Aragon's
fourth issue.
Finally, in his fifth issue, Aragon complains that the trial court erred by
admitting certain burglary tools found at the scene. Items believed to have been
used in the commission of an offense are admissible in evidence when relevant to
prove the context of the defendant's actions. See Miller v. State, 874
S.W.2d 908, 915 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd)
(holding two cases of poker chips and other physical evidence relevant and
admissible to prove defendant's gambling activities). In this instance, the
trial court admitted into evidence a magnetic key-card, a crowbar, two
screwdrivers, and a box-cutter found at the scene. These tools were relevant to
prove that Aragon was burglarizing the apartment office on the night of his
arrest. We hold that admitting these items into evidence was not an abuse of
discretion and overrule Aragon's fifth issue.
V. Conclusion
Having overruled all of Aragon's issues, we affirm the trial court's
judgment.
 
                                                           
SUE WALKER
                                                           
JUSTICE
 
PANEL B: HOLMAN, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
[Delivered March 20, 2003]

