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                                  MEMORANDUM OPINION

                                           No. 04-08-00050-CR

                                         Stanley ALEXANDER,
                                                Appellant

                                                     v.

                                          The STATE of Texas,
                                                Appellee

                      From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CR-8510
                             Honorable Sharon MacRae, Judge Presiding

Opinion by:       Catherine Stone, Justice

Sitting:          Alma L. López, Chief Justice
                  Catherine Stone, Justice
                  Sandee Bryan Marion, Justice

Delivered and Filed: October 15, 2008

AFFIRMED

           Stanley Alexander was convicted by a jury of the offense of robbery and sentenced by the trial

court to 30 years confinement. On appeal, Alexander argues: (1) the evidence of his prior convictions

was improperly admitted against him; (2) the evidence is insufficient to establish the enhancement

paragraphs in his indictment; and (3) his rights to due process were violated by the State’s

prosecutorial vindictiveness. We affirm the trial court’s judgment.
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                               EVIDENCE OF PRIOR CONVICTIONS

       Alexander argues that State’s exhibit number one at sentencing was inadmissible as evidence

of his prior convictions at sentencing because the sentences contained in the exhibit lack an attached

judgment. Because Alexander raises this particular argument for the first time on appeal, the

argument was not properly preserved for appellate review. See TEX . R. APP . P. 33.1. We do note,

however, that Article 37.07(3)(a) has been amended to omit the requirement that evidence of a

defendant’s prior criminal record include evidence of only final convictions. See TEX . CODE CRIM .

PROC. ANN . art. 37.07 § 3(a) (Vernon Supp. 2008). Prior convictions can be proven using any

reliable evidence to show 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) (holding no “best

evidence” rule in Texas requires the fact of a prior conviction to be proven with any document, much

less any specific document). We review the trial court’s decision to admit evidence under an abuse

of discretion standard, and we will reverse only if we determine the trial court’s decision was

arbitrary and unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Here

State’s exhibit one was evidence of a prior conviction and was linked to Alexander by fingerprints.

Therefore, even if error had been preserved, the trial court would not have abused its discretion in

admitting exhibit one at sentencing nor in using the exhibit as evidence that Alexander was a

habitual offender.

                     EVIDENCE OF THE HABITUAL OFFENDER ENHANCEMENT

       Alexander next contends there is insufficient evidence for the trial court to find that he was

a habitual offender. Section 12.42(d) of the Penal Code provides:

       If it is shown on the trial of a felony offense other than a state jail felony punishable
       under Section 12.35(a) that the defendant has previously been finally convicted of


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       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 he shall be punished by imprisonment in the institutional division of the
       Texas Department of Criminal Justice for life, or for any term of not more than 99
       years or less than 25 years.

TEX . PENAL CODE ANN . § 12.42(d) (Vernon Supp. 2008).

       The trial court relied on exhibit one to establish that Alexander was a habitual offender based

on Alexander’s two prior convictions for possession of cocaine. Alexander contends both of his

convictions for possession of cocaine list the same date of sentencing and, therefore, the evidence

does not establish the proper sequence that must be proven by the State. “The sequence of events

must be proved as follows: (1) the first conviction becomes final; (2) the offense leading to a later

conviction is committed; (3) the later conviction becomes final; (4) the offense for which defendant

presently stands accused is committed.” Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App.

1987). State’s exhibit one establishes that Alexander’s first felony conviction for possession of

cocaine (case number 373-092 in exhibit one) became final when his probation was revoked and he

was sentenced to four years on January 10, 1997. Alexander committed his second offense for

possession with the intent to distribute cocaine (case number 397-138 in exhibit one) on February

27, 1998, after the first felony became final. This second felony became final on August 19, 1999,

when he was sentenced to forty months in custody, which was before the commission of the offense

for which Alexander was on trial. Therefore, the evidence is sufficient to support the trial court’s

finding that Alexander was a habitual offender because he had previously been finally convicted of

two felony offenses. See Tomlin, 722 S.W.2d at 705.




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                                 PROSECUTORIAL VINDICTIVENESS

        Finally, Alexander claims that the State acted vindictively by re-indicting him with the

additional enhancement paragraphs after his mistrial due to a hung jury. Alexander contends the

State’s re-indictment should be presumed to be vindictive because the enhancements put him at risk

for greater punishment as a result of the initial mistrial. It is a violation of due process for the State

to add additional criminal charges in retaliation for the defendant’s exercise of his legal rights.

Blackledge v. Perry, 417 U.S. 21, 28-29 (1974). If, following a defendant’s successful appeal, the

State increases the charge, the increased charge is presumed to be the result of prosecutorial

vindictiveness because it functions to chill the defendant’s right to appeal. Neal v. State, 150 S.W.3d

169, 173 (Tex. Crim. App. 2004). The State can rebut the presumption of vindictiveness by giving

an explanation for the increased charges which is unrelated to the defendant’s exercise of his legal

right to appeal. Id.

        Alexander argues that the State’s decision to add the enhancement paragraphs after the

mistrial constitutes prosecutorial vindictiveness. However, the presumption of vindictiveness does

not apply unless the defendant exercises a statutory or constitutional right to review by a higher

court. See Castleberry v. State, 704 S.W.2d 21, 24 (Tex. Crim. App. 1984). Alexander’s mistrial

was the result of a hung jury; therefore, no presumption of vindictiveness arose. Because Alexander

presented no other evidence that the State acted vindictively in adding the enhancement paragraphs,

Alexander’s complaint on appeal is overruled.

                                             CONCLUSION

        The judgment of the trial court is affirmed.

                                                         Catherine Stone, Justice

Do Not Publish

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