                                                                                     PD-0511-15
                                                                    COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                  Transmitted 12/16/2015 3:55:44 PM
December 16, 2015                                                   Accepted 12/16/2015 4:08:46 PM
                                                                                     ABEL ACOSTA
                              Appeal No. PD-0511-15                                          CLERK

                              ____________________

                          In the Court of Criminal Appeals


                                  Austin, Texas
                              ____________________

 Alvin Peter Henry, Jr.                                  Petitioner

                                        vs.
 The State of Texas                                      Respondent
                              ____________________

 On Petition for Discretionary Review from the Sixth Court of A ppeals in No. 06-
 14-00130-CR affirming conviction in 25589 from the Sixth Judicial District Court
 of Lamar County, Texas
                              ___________________

                    PETITIONER’S BRIEF ON THE M ERITS
                           _____________________

                                       Gary L. W aite
                                       Attorney for Petitioner
                                       State Bar No. 20667500
                                       104 Lamar Ave.
                                       Paris, TX 75460
                                       Telephone: (903)785-0096
                                       Facsimile: (903)785-0097
                                       e-mail: garywaite@ sbcglobal.net
ID EN TITY O F JU STIC ES, JU D G E, PA R TIES A N D C O U N SEL

      Justices:     Opinion by Justice Burgess, before M orris, C.J., M oseley and
                    Burgess, JJ, Sixth Court of Appeals at Texarkana, Texas

      Trial Judge: Honorable Bill Harris

      A ppellant-Petitioner:      Alvin Peter Henry, Jr.

      A ttorney for Petitioner at trial:

      David C Turner: 1116 Lamar Ave., Paris, TX 75460
      Tel: 903-785-8511; Fax: 903-737-2455

      A ttorney for Petitioner on A ppeal:

      Gary L. W aite: 104 Lamar Ave., Paris, TX 75460
      Tel: 903-785-0096; Fax: 903-785-0097

      A ttorney at Trial for the State:

      Gary D. Young, County Attorney of Lamar County, Texas: 119
      N. M ain, Paris, TX 75460; Tel: 903-737-2413

      Elected D istrict and County A ttorney:

      Gary D. Young, 119 N. M ain, Paris, TX 75460; Tel: 903-737-2413

      A ttorney on A ppeal for the State:

      Gary D. Young, County And District Attorney for Lamar County, Texas
      and County Attorney’s Office, Lamar County Courthouse: 119 N. M ain,
      Paris, TX 75460; Tel: 903-737-2413




                                                ii
      TA BLE O F C O N TEN TS

      LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii

      TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii

      INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

      STATEM ENT OF THE CASE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. .2

      STATEM ENT REGARDING ORAL ARGUM ENT . . . . . . . . . . . . . . . . .2-3

      ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         W hen the State failed to properly link Petitioner to the enhancement
paragraphs, did the Sixth District Court of Appeals unreasonably hold that
Petitioner and Coleman’s testimony (showing that Petitioner has been to prison
multiple times) is sufficient to uphold the prior enhancement convictions, and is this
ruling in conflict with Prihada v. State (sic) ?

      STATEM ENT OF FACTS. . . . . . . . . . . . .... . . . . . . . . . . . . . . . . . . . . . . .3-6

      SUM M ARY OF THE ARGUM ENT . . . . . . . . . . .. . . . . . . ... . ... . . . . . . . . . 6

      ARGUM ENT AND AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-14

      CONCLUSION AND PRAYER. . . . . ... . . . . . . . . . . .. . .. . . . . . . . . . . . . . .14

      CERTIFICATE OF SERVICE. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .15

      CERTIFICATE OF COM PLIANCE W ITH RULE 9.4 ( i). . . . . . . . .. . . . . 16




                                                         iii
IN D EX O F A U TH O R ITIES

Bryant v. State, 187 S.W .3d 397 (Tex. Crim. App. 2005). . . . . . . . .. . . . . . 12

Doyle v. State, 145 S.W . 2d 876 (Tex Crim. App. 1940) . . . . . . . .. . . . . . . 7-8

Flowers v. State 220 S.W .3d 919 (Crim App. 2007). . . . . . . . . . . . . . . . . . 8-9

Fulbright v. State, 818 S.W .2d 808 (Tex Crim App, 1991). . . . . . . . . . . 13-14

M cCann v. State, 123 Tex Cr. R. 626, 60 S.W .2d 451 (1933). . . . . . . . . . . . .8

Prihoda v. State 352 S.W .3d 796 (Tex App–San Antonio 2011). . ... . . .11-13

Reyes v. State, 394 S.W . 3d 809 (Tex. App.--Amarillo 2013). . . . . . . . . .9-10




                                            iv
                                 Appeal No. PD-0511-15
                                 ___________________

                            In the Court of Criminal Appeals

                                     Austin, Texas
                                 ____________________

       Alvin Peter Henry, Jr.                                    Petitioner

      vs.
      The State of Texas                                         Respondent
      ____________________


      On Petition for Discretionary Review from the Sixth Court of Appeals in No.
06-14-00130-CR affirming conviction in 25589 from the Sixth Judicial District
Court of Lamar County, Texas

                                  ___________________

                      PETITIONER’S BRIEF ON THE M ERITS
                             _____________________

      TO THE JUDGES OF THE COURT OF CRIM INAL APPEALS:

             Now comes Alvin Peter Henry, Jr., Petitioner in the above styled

cause, by and through his court-appointed attorney on appeal, and files this his brief

on his Petition for D iscretionary Review, in support of which he would respectfully

show the Court the following.




                                         1
         Statem ent of the Case

          Appellant was charged by indictment with the offense of Evading

Arrest/Detention with a M otor Vehicle with a D eadly W eapon, a third            degree

felony (Clerk’s Record [CR], p. 5), with             Enhanced Sentence as a Habitual

Offender pursuant to Penal Code Sec. 1242 (b)(sic) (CR, pp. 45-46).          After a jury

trial, Appellant was convicted by a jury and sentenced by the same jury to sixty

(60) years in the Institutional Division, Texas Department of Criminal Justice

(TDCJ) ( CR, pp. 55-56).

          Petitioner gave timely notice of appeal,    on July 1, 2014 (CR, p. 92).

Appellate Counsel was appointed by the Trial Court on July 15, 2014 (CR, p. 97).

Petitioner filed his brief on December 15, 2015. The Sixth Court of Appeals affirmed the

conviction on A ril 16, 2015. Petitioner filed a M otion for Rehearing on M ay 14, 2015,

which was overruled on M ay 19, 2015. Petitioner timely filed a pro se Petition for

Discretionary Review on July 13, 2015.      This Court granted Petitioner’s Petition for

Discretionary Review on October 7, 2015.          On or about October 28, 2015, the

undersigned attorney was appointed by the trial Court to represent Petitioner before this

Court.

         Statem ent Regarding Oral Argum ent

         This Court has previously stated that oral argument would not be allowed. If,

after briefing of the issue, the Court determines that oral argument would be

                                           2
helpful, counsel for appellant will be available for oral argument, and believes that

oral argument would be helpful to the Court.

       Issue Presented

       W hen the State failed to properly link Petitioner to the enhancement

paragraphs, did the Sixth District Court of Appeals unreasonably hold that

Petitioner and Coleman’s testimony (showing that Petitioner has been to prison

multiple times) is sufficient to uphold the prior enhancement convictions, and is this

ruling in conflict with Prihada v. State (sic) ?

       Statem ent of Facts

       Appellant was charged by Indictment with the offense of              Evading

Arrest/Detention with M otor Vehicle with Deadly Weapon Finding (CR, p. 5).

Appellant entered a plea of Not Guilty (RR, vol 4, p. 13). Appellant w as found

guilty by a jury, and found to have used or exhibited a deadly weapon (RR, vol 4,

pp. 60-61).

       During   the punishment       hearing, enhancement allegations, alleging

aggravated assault , and aggravated robbery were read to the jury and Appellant

entered pleas of “Not True.” (RR, vol 4, p. 63, l1- p. 64, l. 4; see also CR, pp. 45-

46).




                                            3
      In the opening statement on punishment, the state’s attorney said that he w as

not sure why appellant was pleading “N ot True” when his attorney had already

stipulated that they are true (RR, vol 4, p 64, ll. 14-20; see RR, Vol.

      The state offered into evidence judgments of conviction, primarily from Red

River County, Texas as state’s exhibits 3-15. Appellant’s lawyer stated he had no

objection. ( See RR, vol 4, pp 66, l, 25-p. 69, l. 16; RR, vol 5, state’s exhibits 3

through 15; CR, pp. 49-51; pp. 59-60). All the judgments are styled “The State of

Texas v. Alvin Peter Henry.” Appellant’s name in all pleadings in this case is

Alvin Peter Henry, Jr. (Emphasis added).(CR, p.5; see generally, Clerk’s Record).

      After introducing the prior Judgments of conviction, the state rested.

      Appellant called Dr. David Bell to testify about appellant’s mental retardation

and mental illness. On direct examination, in response to a question about Bell’s

interview of appellant, Bell testified that appellant told him he had been to the

Texas D epartment of Corrections, but could not give any sort of details. (RR, vol 4,

p. 73, at lines 17-18).    On cross examination, the state’s attorney asked Bell if

appellant had told him he had been in and out of prison from 1978 to 2010. Bell

answered “Yes.” (RR, vol 4, p. 89)

        Outside the presence of the jury appellant’s attorney stated he thought his

client should testify. (RR, vol 4, p 91, ll. 6-24). The Court admonished appellant



                                           4
that if he testified that the state could ask him questions about his criminal

convictions and the offense that he was on trial for. The Court advised appellant

that he did not have to testify. Appellant indicated that he w anted to testify. (RR,

vol 4, p 92, ll. 1-24) On cross examination, Appellant admitted that he had been to

prison for aggravated robbery and aggravated assault; that he had been to prison for

theft, two burglaries, but didn’t know anything about a possession a prohibited

weapon. (RR, vol 4, p. 109, l. 23-p. 110, p. 17).

      Appellant’s cousin, Dewayne Coleman was called by the defense to testify.

On cross examination, when asked if he knew that in 1989 appellant went to prison

for aggravated assault, Coleman answered “Right;” and when asked if appellant

went to prison in 2002 for aggravated robbery, he answered “okay.” (RR, vol 4,

p.119, l. 18- 23).

      After both sides closed, there was a discussion concerning appellant’s

testimony.   The prosecutor argued that by testifying appellant had changed his plea

of “Not True” to the enhancements, and admitted that he had been convicted of the

alleged prior offenses, and that M r. Coleman’s testimony confirmed it. (RR, vol 4,

p. 122, ll 18-23). The prosecutor’s reasoning was that when you plead not true you

do not get on the witness stand and confess that you have been convicted.




                                          5
Appellant’s attorney stated   it went to the weight of the evidence and that M r.

Young’s got plenty of options. (RR, vol 4, p. 123, ll 6-18).

      During closing argument the state argued that appellant pled “ Not True,”

even though defense stipulated that these w ere the judgments and sentences

involving Alvin Peter Henry, and even though he confessed that he was convicted

of these offenses, and even though he told        Dr. Bell he was convicted of these

offenses.   He stated Mr. Coleman had testified he had been convicted of these

offenses. (RR, vol 4, p135, ll 4-14).

        The jury found the two enhancement allegations true, and sentenced

appellant to 60 years in the penitentiary. (See generally RR, vol 4, pp 138-143).

      Sum m ary of the Argum ent

      The state did not link the convictions used for enhancement to appellant.

The state introduced prior conviction judgments that did not have any identifiers

that linked appellant to the prior convictions. No one testified that the individual(s)

convicted in the prior judgments was one and the same as the appellant. Further, the

name on the prior conviction judgments is not the same as appellant. Appellant is

Alvin Peter Henry, Jr.      The prior conviction judgments name the individual

convicted as Alvin Peter Henry. Appellant did not stipulate to the prior convictions

that were introduced into evidence against him.



                                          6
       Argum ent and Authority Under Ground of Error

             W ithout objection the state   offered Judgments of prior convictions into

evidence state’s exhibits 3-15 (See RR, vol 4, pp 66, l. 25-p. 69, l. 16; RR, vol 5,

state’s exhibits 3 through 15; CR, pp. 49-51; pp. 59-60). All the judgments of prior

convictions are styled The State of Texas v. Alvin Peter Henry. Appellant’s name

as set forth in the indictment is Alvin Peter Henry, Jr. (Emphasis added) (CR, Vol

1, p. 5. )

       It has been long held by this Court that the State must establish the identity of

a defendant as the person who has been convicted of the prior offenses, and the

mere recital in the certified copies was not sufficient to establish that identity.

Doyle v. State, 145 S.W . 2d 876 (Tex Crim. App. 1940). Doyle was charged with

sale of whiskey in a dry area, with two prior convictions of like offenses. The state

introduced in evidence certified copies of judgments showing Doyle had             been

convicted in two cases of the offenses of possessing whiskey in a dry area for the

purpose of sale. However, there was no other proof showing that Doyle was the

same person convicted of the offenses on which the judgments introduced were

founded.       In order to identify Doyle as the party w ho had previously been

convicted, the state relied on the fact alone that appellant’s name was the same as

that shown in the judgments of conviction introduced for enhancement of



                                             7
punishment. This Court, in reversing the conviction, held that it is incumbent

upon the state to establish the identity of appellant as the person who had been

previously convicted of like offenses.   “The mere recital in the certified copies of

the judgments in such cases was not sufficient to establish such identity” Doyle at

418, citing M cCann v. State, 123 Tex Cr. R. 626, 60 S.W.2d 451 (1933).

     This Court has more recently held that there are various ways to prove prior

convictions. Flowers v. State 220 S.W .3d 919 (Crim App. 2007). In Flowers, the

file of a prior conviction w as “missing,” and the clerk sent a certified computer

printout of appellant’s conviction record.     This record, along with appellant’s

driving record was introduced into evidence without objection.         The computer

printout contained appellant’s name, date of birth, address, social security number,

date of arrest, charged offense, finding of guilt, sentence, and the judicial case

identification number.    This information matched the information contained on

appellant’s Texas driver’s license record.    The information was sponsored by the

state’s investigator, who testified that the information in the certified printout

matched the drivers license record, and both referred to the same Vincent Henry

Flowers.   Based on this evidence, this court held that the state proved the prior

conviction beyond a reasonable doubt. Flowers at 925.          Judge Johnson, in her

concurring opinion, stated that there must be 1) enough information to establish that



                                          8
the conviction can be connected to its proper owner; and 2) the information is

sufficiently corroborated. More information makes the connection more reliable.

Name and date of birth are not enough.           Judge Johnson suggested that an

inexhaustive list of factors to consider would include: full name, date of birth,

Social Security number, what the prior offense was, the place and date of the prior

offense, the date of conviction, testimony about the prior conviction from a

corrections, parole or probation officer, or the prosecutor of the prior conviction.

Flowers at 925.

      The Courts of Appeal have, until the ruling in the present case, held that to

enhance punishment, it is incumbent upon the state to prove that a defendant is the

same person w ho w as convicted in a prior alleged offense. Reyes v. State, 394 S.W .

3d 809, 810-811 (Tex. App.--Amarillo 2013).      In Reyes, the defendant was charged

with felony driving while intoxicated. The state introduced, without objection, two

judgments, a 1991 judgment revoking probation, styled State of Texas v. Jose

Angel Reyes, and     a 1989 judgment of conviction styled State of Texas v. Jose

Angel Reyes. The state made an effort to prove up the prior convictions by calling

the state’s investigator who testified that the 1991 judgment containing fingerprints,

were those of the defendant. The 1989 judgment contained no fingerprints, and the

investigator expressed no opinion concerning whether the defendant was the same



                                          9
person convicted in 1989. In it’s discussion the Court stated the evidence linking

Reyes to the 1989 conviction is limited to the information contained on the face of

the judgment. Compared with the 1991 judgment, the judgment shows a defendant

with the same full name as the defendant, represented by the same attorney,

convicted in the same county in 1989. The Court believe, based on the information

contained in the 1991 judgment referencing a 1989 offense in the same county, the

defendants are probably the same person. But as the Court stated, “probably is not

good enough.” The Court held that the evidence presented at the guilt/innocence

stage of trial was insufficient to allow a rational trier of fact to find, beyond a

reasonable doubt, that the defendant is the same individual who was the subject of

the 1989 judgment. The state proved one prior DW I conviction but not two. Reyes,

394 S.W.3d at 811-812.

       In the present case, the state introduced at the punishment trial, without

objection, eleven judgments from Red River County and one from Harris County,

all styled “The State of Texas v. Alvin Peter Henry.” Two of those judgments,

state’s exhibits 9 and 10 were introduced for the purpose of enhancing the sentence

of appellant as a habitual offender. (RR, vol 5, Exhibits 9 and 10). The judgments

contain very little of the information suggested by the Flowers Court as acceptable.

Except for what the prior offense was, the date of the prior offense, and date of



                                        10
conviction, there is no other information available to a jury. M ost telling is that the

names on the prior convictions and the name of appellant in this case are not the

same. The prior judgments name Alvin Peter Henry as the person convicted.

Appellant’s name is Alvin Peter Henry, Jr.          There was no testimony linking

appellant to the prior convictions.     The closest that the state came was asking

witnesses if appellant had been to prison for certain offenses.       At no time was

appellant affirmatively linked to the judgment convictions admitted into evidence.

     In Prihoda v. State, the San Antonio Court of Appeals held that the state is

required to prove beyond a reasonable doubt that (1) a prior conviction exists; and

(2) the defendant is linked to that conviction. Prihoda v. State 352 S.W .3d 796, 807

(Tex App–San Antonio 2011). The court, in it’s opinion noted that a certified copy

of the judgment standing alone is insufficient to prove a prior conviction, and this is

true even if the name on the judgment is the same as the defendant in trial.      In this

case, the state, has proven that prior convictions exist, but has not linked appellant

to the prior convictions. The prosecutor, in his closing argument on punishment,

argues to the jury that it has proven the prior convictions by 1) a stipulation from

the defense counsel, 2) a confession from appellant that he had been convicted of

those two offenses, 3) what appellant had told Dr. Bell concerning those

convictions, and 4) that Coleman told the jury that he was convicted of those



                                           11
offenses. (RR, vol 4, p. 135, ll. 9-16). The undersigned has found nothing in the

record indicating that appellant stipulated to the prior convictions.1 In any event,

appellant’s     plea of “Not True” makes it incumbent on the state to prove the

convictions. Appellant did not admit that he had been convicted of the alleged prior

convictions.

           However, at no time did appellant ever indicate that he had been convicted

of any of the alleged offenses in the judgments introduced.                Bell was asked if he

“had been to prison for aggravated assault twice, he answered “Yes,” and when

asked if he had been to prison for aggravated robbery and for three different family

violent assaults and four assaults, the witness answered “He has a history of

violence, yes.”(RR, vol 4, p 83, ll 5-12).             Coleman was asked if he knew that

appellant “went to prison” in 1989 for aggravated assault, He answered “Right.”

And when asked if he knew appellant “went to prison” in 2002 for aggravated

robbery, the witness answered “Okay” (RR, vol 4, , l. 18-p.119- l. 5). Prihoda, has

a good discussion and cites to several cases where certain evidence has been found




       1
         See Bryant v. State, 187 S.W.3d 397,405 (Tex. Crim. App. 2005) In Bryant, there was a
written stipulation signed by Bryant and made part of the record. In this case, appellant Henry
did not sign a written stipulation, nor did he testify on the record that he agreed to the alleged
stipulation. There are no specific judgments mentioned in this alleged stipulation, for either
appellant or his attorney to know what they were stipulating to.(See RR, vol 2, p. 20)


                                                12
to link the defendant to the prior convictions Prihoda, 352 S.W .3d at 808-809, and

cases cited therein.

      None of the links set forth in Prihoda of proving the prior convictions are

present in this case.   No witnesses were shown any of the alleged prior conviction

judgments to identify them or to identify appellant as the individual who had been

convicted in the alleged judgments. Further, none of the witnesses even said that

appellant had been convicted, only that he had been to prison for assaults, robbery,

and burglaries. The State has failed to link appellant to the prior convictions.

Specifically, the state    did not tie the specific judgments introduced for

enhancements to what appellant had been to prison for.      As noted above, all of the

prior judgments in this case have the name Alvin Peter H enry. Appellant’s name is

A lvin Peter Henry, Jr. Not only did the state fail to link appellant to the prior

convictions, it failed, facially, to even show that the person   convicted in the prior

convictions was the same person on trial.

      Harm Analysis

      There can no dispute that the error was harmful. The alleged enhancements

raised the punishment from a third degree felony with a two to ten year punishment

range to a twenty-five years to life in prison punishment range. Further, the jury

gave appellant sixty years in the penitentiary, which is the on the higher end of the



                                            13
punishment range. The alleged unproven extraneous offense convictions led to the

increased punishment (See Fulbright v. State, 818 S.W.2d 808, 810-811 (Tex Crim

App, 1991).

      Based on the foregoing argument and authority, appellant requests that this

Court reverse and remand for a new punishment hearing.

      Conclusion and Prayer

       For the reasons contained herein,       A ppellant respectfully prays that this

Court reverse the judgment of the Court of Appeals for the Sixth District, and

reverse and remand this case for a new punishment hearing and for such other relief

as appellant may be entitled.

                                Respectfully submitted,
                                Gary L. W aite
                                Attorney for Appellant
                                104 Lamar Ave.
                                Paris, Texas 75460
                                903/785-0096
                                903/785-0097 (fax)



                                By: /s/G ary L. W aite
                                    Gary L. W aite
                                    SBN 20667500




                                          14
                             C ER TIFIC A TE O F SER VIC E

      This is to certify that on December 16, 2015, a true and correct copy of the

above and foregoing document was served on the      Lamar County Attorney's

Office, 119 N. M ain, Paris, Texas 75460, by hand delivery and to the State

Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711-3046 by certified mail,

return receipt requested.

      .




                                       /s/G ary L. W aite




                                         15
       CERTIFICATE OF COM PLIANCE W ITH RULE 9.4 (i)The brief filed

in this cause complies with the word limitations of Tex. R.App. P. 9.4 (i) because

the brief contains 2719 words, excluding the parts of the brief exempted by Tex. R.

App. P. 9.4 (i) (1).




                                /s/G ary L. W aite_____________________




                                          16
