Cain v. State, 43778

• Decision Date: 02 June 1971
• Docket Number: No. 43778,43778
• Citation: 468 S.W.2d 856
• Parties: Ronald CAIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 856

468 S.W.2d 856

Ronald CAIN, Appellant, v. The STATE of Texas, Appellee.

No. 43778.

Court of Criminal Appeals of Texas.

June 2, 1971.

Rehearing Denied July 14, 1971.

John G. Gilleland, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Jack Bodiford, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for robbery by assault; the jury assessed the punishment at 15 years.

The record reflects that on November 8, 1967, the appellant and Stanley Trammel entered the premises of the Community Finance Company in Galena Park, Harris County, Texas. Present were David Miller, the manager, and Joanne Poteet, an employee. Trammel and the appellant pointed guns at them and demanded their money. The robbers took $400 and forced the two employees into the bathroom while they left the premises.

The appellant presents two grounds of error, both relating to the punishment stage of the trial.

His first ground of error challenges the admission into evidence of copies of jury waivers, stipulations of evidence, judgments, and sentences from four prior convictions. He contends that there was no evidence to show that he was the same person so previously convicted.

Such documents were admitted to prove previous convictions of three counts of felony theft and one count of unlawfully breaking and entering a motor vehicle. The stipulations of evidence and jury waivers both contained the signature of 'Ronald E. Cain.'

Also introduced into evidence was the appellant's motion to have the jury assess the punishment in this case. This document bore the signature of the appellant.

Art. 37.07 of the Vernon's Ann.Code of Criminal Procedure provides that at the punishment stage of the trial, evidence of the 'prior criminal record of the defendant' may be introduced. The prior convictions here were not alleged for enhancement, but were offered to prove the accused's prior criminal record.

The certified copies of the judgments and sentences are admissible to prove these prior offenses at the penalty phase of the trial. However, it is incumbent on the state to go further and show by independent testimony that the appellant was the identical person so previously convicted. The State's failure to comply with this requirement constitutes reversible error. Vessels v. State, Tex.Cr.App., 432 S.W.2d 108, 116.

The State contends that introduction into evidence of the appellant's signature on his written motion to have the jury assess punishment in this case, gave the jury evidence by which they could compare that signature with the signatures on the jury waivers and stipulations of evidence introduced to prove the prior convictions.

The question, then, is whether this constitutes 'independent testimony' showing that the appellant was the same person so previously convicted.

The State relies upon Art. 38.27 of the Code of Criminal Procedure, ¹ which provides as follows:

'It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath.' ²

The question of how this article applies to proof of prior criminal record in a bifurcated trial appears to be one of first impression.

This Court has approved several different means to prove the accused was the same person previously convicted. They include, but are not necessarily limited to: (1) Testimony of a witness who identifies the accused as the same person previously convicted. Garcia v. State, 135 Tex.Cr.R. 667, 122 S.W.2d 631; Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732; (2) Introduction of certified copies of the judgment and sentence and records of the Texas Department of Corrections or a county jail including fingerprints of the defendant, supported by expert testimony identifying them as identical with known prints of the defendant. Vessels v. State, 432 S.W.2d 108; (3) And by stipulation or judicial admission of the defendant. Brumfield v. State, supra.

The question before us is whether the State sufficiently established the identity of the appellant as the person so previously convicted. We conclude that under the circumstances of this case, where handwriting samples are introduced without expert testimony and the jury alone must make the comparison, and there is no other evidence to connect the appellant with the prior convictions, such identity has not been sufficiently established.

We cannot construe Art. 38.27 as meaning that mere introduction of a sample of the accused's signature, coupled with introduction of a signature on records showing a prior conviction, will suffice as independent testimony to prove the identity of the appellant as the person who was so previously convicted.

This is not a situation where it is sought to be proved that the accused executed a false instrument or committed forgery. Whether the handwriting is that of the appellant, or whether he in fact actually signed the documents, is not the primary question for the jury's consideration.

While the statute does authorize comparison evidence to prove handwriting, this Court is not bound to a rule that mere formal compliance with Article 38.27, with nothing more, will always prove the identity of the accused as contemplated by Vessels. The statute only authorizes the evidence; whether that evidence is sufficient to prove a particular fact in issue is a question of law. Thus, while it is sufficient to prove the similarity between the signatures, the question of whether proof of similarity of signatures is sufficient in a particular case to prove identity under Vessels is another question.

In deciding that question, we may consider all pertinent factors. Here, we note that no expert testified to support the comparison and that no other connection was made between the appellant and the prior convictions. Thus, the evidence that the appellant was the identical person previously convicted is flimsy indeed, and it is insufficient to support introduction into evidence of the previous convictions.

For the reasons stated herein, the judgment is reversed and the cause is remanded.

DOUGLAS, Judge (dissenting).

This conviction should be affirmed. It should be remembered that this evidence was introduced at the penalty stage of the trial after the jury had already found the appellant guilty. Article 38.27, V.A.C.C.P., provides:

'It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath.'

The jury waiver in the present case signed by the appellant was introduced before the jury. Signatures on jury waivers and stipulations of Ronald E. Cain in five previous convictions were introduced for the jury's consideration as provided for under Article 38.27, supra.

In addition, a photograph and known fingerprints of the appellant were introduced along with fingerprints identified by a qualified fingerprint examiner to be identical to those of the appellant in one prior conviction, Cause No. 117,902 in Criminal District Court No. 5 of Harris County, Texas. The judgment and sentence were dated March 3, 1966. Appellant's Texas Department of Corrections No. 118455 was certified with this cause number and was introduced without objection.

The jury had before it proof of the signatures of jury waivers in Causes numbered 118,526, 118,527, 118,528 and 118,529, all in Criminal District Court No. 5 of Harris County and stipulations on these four prior convictions, all dated March 3, 1966. ¹

After the above evidence concerning the prior convictions, the appellant called his father as a...