                               NUMBER 13-11-00694-CR

                                  COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


WILLIAM SMITH A/K/A
BILL SMITH,                                                                        Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                Appellee.


                        On appeal from the 94th District Court
                             of Nueces County, Texas.


                   MEMORANDUM OPINION ON REMAND

                  Before Justices Garza, Benavides, and Perkes
                    Memorandum Opinion by Justice Perkes
        This case is before us on remand. On November 13, 2014, this Court issued an

opinion reversing appellant William Smith’s conviction for driving while intoxicated—third

offense,1 see TEX. PENAL CODE ANN. §§ 49.04, (West, Westlaw through 2015 R.S.), a

         1 Appellant was previously convicted of two offenses relating to the operation of a motor vehicle

while intoxicated: (1) On March 10, 2006, in Cause No. 63519, in the County Court at Law of San Patricio
County, Texas; and (2) On March 28, 2008 in Cause No. 2007-9764-3 in the County Court at Law No. 3 of
third-degree felony enhanced to a habitual felony offender. See id. §§ 12.42, 49.09(b)(2)

(West, Westlaw through 2015 R.S.); Smith v. State, ___ S.W.3d ___, ___, 2014 WL

5901759, at *1 (Tex. App.—Corpus Christi Nov. 13, 2014), rev’d ___ S.W.3d ___, 2016

WL 3193479 (Tex. Crim. App. June 8, 2016). On June 8, 2016, the Texas Court of

Criminal Appeals vacated our judgment after concluding that appellant failed to preserve

error concerning the admission of blood-test results. See Smith v. State, ___ S.W.3d

___, ___, 2016 WL 3193479, at **4–5 (Tex. Crim. App. June 8, 2016).                            The Court

remanded the case “to consider appellant’s remaining points of error.” Id.

        By his remaining issues, appellant complains: (1) the trial court erred by refusing

to appoint a new attorney on the first day of trial; (2) the trial court erred by overruling

objections to the fingerprint expert’s opinions and admitting the two prior judgments into

evidence; and (3) there was insufficient evidence to show the existence of two prior felony

convictions charged in the indictment. After full consideration on remand, we affirm.

                            I. FAILURE TO APPOINT NEW TRIAL COUNSEL2

        By his first issue, appellant contends the trial court erred “by forcing appellant to

trial with appointed counsel to whom appellant objected.” Appellant’s issue inquires

whether appointed counsel had a duty to timely relay appellant’s request for new counsel

to the court and whether appellant is entitled to rely on appointed counsel in discharging




Nueces County, Texas.

        2  As this is a memorandum opinion on remand and the parties are familiar with the factual and
procedural histories of this case, we will not recite them here except as necessary to advise the parties of
the Court’s decision and the basic reasons for it. See TEX. R. APP. P. 47.1. For a more detailed recitation
of the factual and procedural backgrounds of this case, see Smith v. State, ___ S.W.3d ___, ___, 2014 WL
5901759, at *1 (Tex. App.—Corpus Christi Nov. 13, 2014) rev’d ___ S.W.3d ___, 2016 WL 3193479 (Tex.
Crim. App. June 8, 2016). We have reordered appellant’s issues on appeal for clarity.
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his duties. Appellant, however, does not cite any authority that supports his argument

for reversal based upon defense counsel’s alleged duty to notify the trial court concerning

appellant’s desire for the appointment of other counsel.

A. Standard of Review and Applicable Law

       We review a trial court’s ruling on a motion for withdrawal and replacement of

appointed counsel under an abuse of discretion standard. King v. State, 29 S.W.3d 556,

566 (Tex. Crim. App. 2000) (en banc). As expressed in King:

       [T]he right to counsel may not be manipulated so as to obstruct the judicial
       process or interfere with the administration of justice. Further, personality
       conflicts and disagreements concerning trial strategy are typically not valid
       grounds for withdrawal. A trial court has no duty to search for counsel
       agreeable to the defendant.

Id. (citations omitted).

       Once a trial court appoints an attorney to represent an indigent defendant, the

defendant has been accorded the protections provided under the Sixth and Fourteenth

Amendments to the United States Constitution and Article 26.04 of the Texas Code of

Criminal Procedure; the defendant then carries the burden of proving entitlement to a

change of counsel. See U.S. CONST. amend. VI, XIV; TEX. CODE CRIM. PROC. ANN. art.

26.04 (West, Westlaw through 2015 R.S.); Barnett v. State, 344 S.W.3d 6, 24 (Tex.

App.—Texarkana 2011, pet. ref’d) (citing Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim.

App. 1976)); see also Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985); Watkins

v. State, 333 S.W.3d 771, 775 (Tex. App.—Waco 2010, pet. ref’d); Maes v. State, 275

S.W.3d 68, 71 (Tex. App.—San Antonio 2008, no pet.) (defendant is responsible for

“making the trial court aware of his dissatisfaction with counsel, stating his grounds for

his dissatisfaction, and offering evidence in support of his complaint”). A defendant may
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not wait until the day of trial to demand different counsel or to request counsel be

dismissed so he may retain other counsel. Webb, 533 S.W.2d at 784; Gilmore v. State,

323 S.W.3d 250, 264 (Tex. App.—Texarkana 2010, pet. ref’d).

B. Analysis

         During a break in the State’s first witness’s testimony, appellant informed the trial

court that “everything has happened so fast lately, and I really—I didn’t feel that I was

being represented in the way that I need to be.” Appellant stated he was present in court

under duress because he was not being represented in the manner that he preferred and

that his attorney refused to “relieve himself” despite appellant’s persistent requests. The

record is otherwise silent in this regard. The trial court denied appellant’s motion to

dismiss his attorney and to appoint a new one, noting that the case was “seven months

old” and that appellant had never written the trial court or in any manner communicated

his alleged duress prior to that moment.

         We conclude that appellant’s conclusory and untimely claim that his attorney was

not satisfactorily representing him did not show appellant was entitled to a change of

counsel. See Hill, 686 S.W.2d at 187; Watkins, 333 S.W.3d at 775; Maes, 275 S.W.3d

at 71. The trial court did not abuse its discretion by denying his day-of-trial request. See

Webb, 533 S.W.2d at 784; Gilmore, 323 S.W.3d at 264. We overrule appellant’s first

issue.

                           II. ADMISSIBILITY OF FINGERPRINT EVIDENCE

         By his second issue, appellant argues the trial court erred by “overruling objections

to the opinions of the fingerprint expert and admitting prior judgments into evidence.”

Appellant complains that the fingerprint expert gave mere summary testimony regarding
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general matching characteristics.     Specifically, appellant complains that the expert’s

testimony failed to adequately demonstrate the following: (1) the particular techniques

the expert used and the techniques’ acceptance in the community to establish reliability;

and (2) the specific matching markings that the expert found to identify fingerprints.

A.     Standard of Review

       The admission of expert testimony is reviewed on appeal for an abuse of

discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010) (citing Lagrone

v. State, 942 S.W.2d 602, 616 (Tex. Crim. App. 1997)). Texas Rule of Evidence 702

provides: “If scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education may testify thereto in the

form of an opinion or otherwise.” TEX. R. EVID. 702. Under Rule 702, it is the trial court's

responsibility to determine whether proffered scientific evidence is sufficiently reliable and

relevant to assist the jury. Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App.

2005); Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).

       The proponent of scientific evidence must persuade the trial court through clear

and convincing evidence that the proposed evidence is reliable by establishing: (1) the

underlying scientific theory is valid; (2) the technique applying the theory is valid; and

(3) the technique was properly applied on the occasion in question. Somers v. State,

368 S.W.3d 528, 536 (Tex. Crim. App. 2012); Kelley v. State, 824 S.W.2d 568, 573 (Tex.

Crim. App. 1992).

B.     Pertinent Facts

       1. Guilt-Innocence Phase
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       Nueces County Sheriff’s Deputy Fred Flores testified that he was a fingerprint

identification expert with extensive training and experience. Deputy Flores explained

that he compared known fingerprints taken from appellant with fingerprints found in

State’s Exhibit 4 containing two prior DWI convictions. Without objection, Deputy Flores

testified, “Based on the comparison of the fingerprints on Exhibit No. 4 to the known

fingerprints that I took . . . of [appellant] this morning, they are one in [sic] the same

individual[.]”

       The State moved to admit Exhibit 4, at which time appellant took Deputy Flores on

voir dire to question him concerning his fingerprint comparison.          Deputy Flores then

explained that he identified appellant’s fingerprints by comparing “numerous ridge

endings, cores, deltas, bifurcations, converging ridges, mostly deltas.”           Appellant

objected to the introduction of State’s Exhibit 4, arguing that Deputy Flores’s opinion

regarding the fingerprint comparison was not “rationally based upon human perception.”

The trial court overruled the objection and admitted State’s Exhibit 4.

       2.        Sentencing Phase

       During the sentencing phase, Deputy Flores testified concerning fingerprints found

in judgments for two prior felony convictions, labeled State’s Exhibits 5 and 6.         He

testified that he received “pen packets” from the “Texas Department of Corrections” which

contained a judgment, sentence, photograph and fingerprints of “[appellant] or individual

that was processed and housed at the unit.” Deputy Flores testified that the fingerprints

in the “pen packets” matched known fingerprints taken from appellant. Without objection




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Deputy Flores stated, “After comparing the known fingerprints of [appellant] to the pen

packets in Exhibits 6 and 5, it was determined based on that . . . comparison, that they’re

one in [sic] the same individual, [appellant].”

       On cross-examination, Deputy Flores explained that he compared “ridge

characteristics, bifurcation, converging ridges, diverging ridges, cores, deltas, ridge

endings, and dots.” He further testified as follows regarding his comparison of those

characteristics:

       All—all those factors were in those fingerprints, the cores, the deltas; and
       then, of course, you go back and forth from the known prints to the—to the
       exhibits until you make a determination as to whether they’re one and the
       same, and you—you find a specific point on the fingerprint and then go from
       one exhibit to the other until you find sufficient number of characteristics that
       determine that it’s one in [sic] the same.

       The State moved to admit Exhibits 5 and 6. Appellant objected, arguing that “the

testimony wasn’t specific enough regarding the comparison points, plus there’s no written

reports.” The trial court overruled appellant’s objection and admitted the exhibits.

C.     Preservation

       At trial, appellant objected to the admission of State’s Exhibits 4, 5, and 6. On

appeal, appellant’s issue focuses on Deputy Flores’s testimony. Appellant principally

complains “there is no evidence from which the trial court could determine the technique

or methodology applying the theory was valid or [that] the technique was properly applied

in this case.”

       A complaint is not preserved for appeal unless it was made to the trial court by a

timely request, objection or motion that stated the grounds for the ruling that the

complaining party sought from the trial court. Resendez v. State, 306 S.W.3d 308, 312

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(Tex. Crim. App. 2009) (citing TEX. R. APP. P. 33.1(a)(1)(A)). A “point of error on appeal

must comport with the objection made at trial.” Wilson v. State, 71 S.W.3d 346, 349

(Tex. Crim. App. 2002); see Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005).

       Deputy Flores testified, without objection, regarding his comparison of appellant’s

fingerprints with those fingerprints in the various exhibits. Appellant had the opportunity

to cross-examine Deputy Flores, but he never objected to his testimony.               Instead,

appellant objected to the admission of State’s Exhibits 4, 5, and 6. Appellant’s objections

at trial do not comport with his argument on appeal. See Heidelberg v. State, 144 S.W.3d

535, 537 (Tex. Crim. App. 2004) (holding that the “legal basis of a complaint raised on

appeal cannot vary from that raised at trial”). Appellant’s issues therefore have not been

preserved for appellate review. See TEX. R. APP. P. 33.1.

D.     Analysis

       However, even if appellant preserved his challenge to Deputy Flores’s testimony,

we would not find error occurred under the facts of this case.          The Texas Court of

Criminal Appeals has held that fingerprint comparison testimony is generally admissible

“because it is reliable and it assists the trier of fact in its task of determining whether a

latent fingerprint is that of a particular person.” Russeau, 171 S.W.3d at 883. Appellant

complains generally about Deputy Flores’s fingerprint comparison testimony, but he fails

to explain how Deputy Flores’s technique was not valid or how Deputy Flores’s application

of the technique was incorrect. See Somers, 368 S.W.3d at 536. We note that Deputy

Flores described multiple distinct fingerprint patterns used in his analysis and testified

that the fingerprints in question matched the known fingerprints taken from appellant.

Based on this testimony, the trial court did not abuse its discretion in overruling appellant’s
                                              8
subsequent objection to the admission of State’s Exhibits 4, 5, and 6.3 See Russeau,

171 S.W.3d at 883; see also Dominguez v. State, No. 08-13-00143-CR, 2015 WL

1137742, at *4 (Tex. App.—El Paso Mar. 11, 2015, no pet.) (mem. op., not designated

for publication) (trial court did not abuse its discretion allowing expert fingerprint testimony

where witness “described three distinct fingerprint patterns used in the analysis (loops,

whorls, and arches) and testified that he found a match in the whorls found on [the

defendant’s] right thumb prints”). We overrule appellant’s second issue.

                     III. SUFFICIENCY OF EVIDENCE TO PROVE PRIOR FELONIES

       By his third issue, appellant argues the evidence is insufficient to show that he

committed the two prior felonies alleged in the indictment.

A. Standard of Review and Applicable Law

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The

fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be

given to their testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699,



       3 We also note that the challenged exhibits contain certified copies of a judgment and sentence,
which are admissible pursuant to Texas Rule of Evidence 901 as a certified copy of a public record. See
TEX. R. EVID. 901(b)(7); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986). However, such
documents, standing alone, are not sufficient to prove a prior conviction. Beck, 719 S.W.2d at 210.
Whether the State has linked a defendant to a prior conviction is reviewed under a sufficiency of the
evidence standard, which we discuss later in this opinion in addressing appellant’s third issue.
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707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is within the fact-

finder’s exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).

We resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State,

767 S.W.2d 769, 776 (Tex. Crim. App. 1989) (en banc).

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

prove beyond a reasonable doubt (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 prove these two elements. Id. A

certified copy of a final judgment and sentence is one method of proving them. See id.

The factfinder “fits the pieces of the jigsaw puzzle together and weighs the credibility of

each piece,” looking to the totality of the evidence to determine whether both elements

are proven beyond a reasonable doubt. Id. at 923.

B. Analysis

       The State alleged in the indictment that appellant had two prior convictions: (1)

“Burglary of a Habitation, on June 7, 1989, in Cause No. 88-CR-1586-A,” from the 28th

District Court of Nueces County; and (2) “Burglary of a Habitation, on February 19, 1992,

in Cause No. 2870-1” from the 156th District Court of Live Oak County, Texas. During

the sentencing phase, the trial court admitted State’s Exhibit Numbers 3, 5, and 6.

State’s Exhibit 3 was a fingerprint card with appellant’s prints that Deputy Flores took from

appellant. State’s Exhibits 5 and 6 were the earlier judgments’ “pen packs.”

       State’s Exhibit 5 contained a certified copy of a felony conviction and sentence for

burglary of a habitation in cause number 2870-1, rendered by the 156th District Court of

Live Oak County, Texas on February 19, 1992. The defendant’s name on the judgment
                                             10
is “William Perry Smith,” and the exhibit included pictures of the defendant and his

fingerprints. State’s Exhibit 6 contained certified copies of two judgments, including a

felony conviction and a sentence for burglary of a habitation in cause number 88-CR-

1586-A, rendered by the 28th District Court of Nueces County, Texas on June 7, 1989.

The defendant in the judgment is “William Smith,” and the exhibit included the defendant’s

picture and his fingerprints. Deputy Flores testified that “[a]fter comparing the known

fingerprints of the Defendant William Bill Smith [appellant] to the pen packets in Exhibits

6 and 5, it was determined based on . . . that comparison, that they’re one in the same

individual, William Bill Smith.”

       Texas law has long recognized that matching an accused’s fingerprints to a set of

fingerprints in a “pen packet” is sufficient to prove the accused is the person convicted in

the prior conviction. See Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1984) (en

banc); Cole v. State, 484 S.W.2d 779, 784 (Tex. Crim. App. 1972); Allen v. State, 451

S.W.2d 484, 484 (Tex. Crim. App. 1970); Williams v. State, 356 S.W.3d 508, 517 (Tex.

App.—Texarkana 2011, pet. ref’d); Cleveland v. State, 814 S.W.2d 140, 142 (Tex. App.—

Houston [14th Dist.] 1991, no pet.); Lancaster v. State, 734 S.W.2d 161, 165 (Tex. App.—

Fort Worth 1987, pet. ref’d). Additionally, allowing the factfinder to compare photographs

included in pen packets with the defendant can alone be sufficient to prove that the

defendant is the same person as the one in the photograph. Forward v. State, 406

S.W.3d 601, 606 (Tex. App.—Eastland 2013, no pet.) (citing Littles, 726 S.W.2d at 31–

32).

       After viewing the evidence in the light most favorable to the prosecution, we hold

that a rational factfinder could have found that two prior convictions existed and that
                                            11
appellant was the person convicted. See Johnson, 364 S.W.3d at 293–94. We overrule

appellant’s third issue.

                                       IV. CONCLUSION

       We affirm the trial court’s judgment.



                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
15th day of December, 2016.




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