Littles v. State

• Decision Date: 19 September 1984
• Docket Number: No. 301-83,301-83
• Citation: 726 S.W.2d 26
• Parties: Wiley Bonner LITTLES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 26

726 S.W.2d 26

Wiley Bonner LITTLES, Appellant, v. The STATE of Texas, Appellee.

No. 301-83.

Court of Criminal Appeals of Texas En Banc.

Sept. 19, 1984.

On Rehearing March 11, 1987.

Wendell A. Odom, Jr., Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and J. Sidney Crowley and Janiece Longoria, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This is an appeal from an aggravated robbery conviction. The jury found the appellant guilty and that the allegations of two prior felony convictions were "true." The court assessed punishment at life imprisonment in accordance with V.T.C.A., Penal Code, § 12.42(d) (in effect at the time).

On appeal the appellant, inter alia, contended that the State failed to prove he was the same person allegedly convicted of the second prior felony conviction set forth in the indictment. On this ground the Houston Court of Appeals [1st Dist.] reversed the conviction and remanded the cause to the trial court. Littles v. State (No. 01-82-0107CR--February 24, 1983). We granted the State's petition for discretionary review to determine the correctness of the decision below.

In addition to the primary offense of aggravated robbery, the indictment alleged that appellant had been previously convicted on May 18, 1970 of burglary in Cause No. 145613 in the 179th District Court of Harris County, and that he had also been convicted on July 22, 1971 of the felony offense of intentionally and knowingly failing to appear in District court in Cause No. 158177 in the 209th District Court of Harris County.

At the penalty stage of the trial the State called Juan Jorge of the Identification Division, Harris County Sheriff's office who was qualified as a fingerprint expert. Jorge testified that known fingerprints of the appellant which he had personally taken from the appellant were identical with the fingerprints found in the pen packets, State's exhibits 7 and 8. It was his opinion that the prints were made by the same person. State's exhibit 7 referred to the prior burglary conviction in Cause No. 145613 alleged as the first prior conviction. It contained the certified copies of the judgment and sentence, photographs, fingerprints, physical description, etc., under the certification of the Records Clerk of the Texas Department of Corrections. State's exhibit 8 referred to the felony conviction for failure to appear in Cause No. 258177, the second alleged prior conviction. It likewise contained certified copies of the judgment, sentence, photographs, fingerprints, etc., under the same certification as exhibit 8.

When State's exhibits 7 and 8 were offered into evidence by the State, the appellant objected to the admission of the fingerprint page of exhibit 8 on the ground that such page on its face expressly referred to a theft conviction with a different cause number than the failure to appear conviction. The prosecution withdrew the fingerprint page which also included a physical description and offered the pen packet, exhibit 8, sans any reference to fingerprints or physical description. Thereafter State's exhibits 7 and 8 were admitted into evidence over objection that exhibit 8 was insufficient to prove appellant was the same person previously convicted as alleged regarding the second prior conviction. Although the alleged second prior conviction occurred in Harris County in 1977, the State made no effort to offer other testimony to prove the appellant was the same person convicted.

Both sides rested and closed and the court submitted the issues of whether the appellant was the same person so previously convicted as alleged in the indictment, and the jury was instructed on the burden of proof.

The jury returned its verdict finding, inter alia, "that the allegations in Enhancements paragraphs one and two of the indictment are 'true.' "

On appeal the Court of Appeals reversed citing Gollin v. State, 554 S.W.2d 683 (Tex.Cr.App.1977), and Daniel v. State, 585 S.W.2d 688 (Tex.Cr.App.1979). It held that exhibit 8, standing alone, was insufficient to show the appellant was the person so previously convicted of the alleged second prior conviction.

It has been said that statutes such as V.T.C.A., Penal Code, § 12.42(d), create no offense, but merely authorize increased punishment to be affixed to subsequent convictions. The provisions are reformatory in nature and must be strictly construed. Ex parte Davis, 412 S.W.2d 46, 51 (Tex.Cr.App.1967).

The State has the burden of proof concerning the prior convictions alleged for the purpose of enhancement of punishment, and the standard of proof is beyond a reasonable doubt. Ex parte Augusta, 639 S.W.2d 481 (Tex.Cr.App.1982). This burden, inter alia, includes proving that the defendant is the same person convicted of the prior felony which will serve to provide predicate for enhancement of punishment. Rios v. State, 557 S.W.2d 87 (Tex.Cr.App.1977).

There are, of course, a number of methods by which the State may properly prove the prior convictions alleged for the purpose of enhancement of punishment. Some have been listed and discussed in Cain v. State, 468 S.W.2d 856 (Tex.Cr.App.1971), and Daniel v. State, supra. These, of course, are not exclusive. One method, and perhaps the most popular with prosecutors because it is the easiest, is the introduction of certified copies of the judgment and sentence and the record of the Texas Department of Corrections or county jail including fingerprints supported by the testimony of an expert witness identifying those prints as identical with known prints of the accused. Rios v. State, 557 S.W.2d 87 (Tex.Cr.App.1977); Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977); Alvarez v. State, 536 S.W.2d 357 (Tex.Cr.App.1976); Blake v. State, 468 S.W.2d 400 (Tex.Cr.App.1971); Babcock v. State, 473 S.W.2d 941 (Tex.Cr.App.1971); Vessels v. State, 432 S.W.2d 108 (Tex.Cr.App.1968).

In the instant case, the prosecutor pursued this method and sufficiently proved the first prior felony conviction alleged by use of exhibit 7 (the pen packet) and the testimony of the fingerprint expert. However, with the withdrawal by the prosecutor of the fingerprint page (including physical description) of exhibit 8, the question is whether the evidence remaining was sufficient to prove the second prior felony conviction alleged.

The withdrawal of the fingerprint page of the said exhibit rendered the fingerprint expert's testimony regarding the same immaterial. All that remained of the exhibit was the certified copies of the judgment and sentence, the photographs (front and side views) and the certification page. Was this enough to prove the second prior conviction as alleged?

The certified copies of the judgment and sentence standing alone are not sufficient to prove the allegations, Franklin v. State, 154 Tex.Cr.R. 375, 227 S.W.2d 814 (1950); Phariss v. State, 149 Tex.Cr.R. 406, 194 S.W.2d 1007 (1946), and this is true even if the name on the judgment and sentence is the same as the defendant on trial. Elizalde v. State, 507 S.W.2d 749, 752 (Tex.Cr.App.1974).

Does the addition of the two photographs or mug shots change the situation?

In Gollin v. State, 554 S.W.2d 683 (Tex.Cr.App.1977), the pen packet, inter alia, included two mug shots (front and side views) and a physical description which reflected the height, weight, complexion, eyes, hair, race, date of birth of the inmate and noted he had a cut scar on the right cheek. Although there was no fingerprint testimony, a deputy sheriff testified he was acquainted with Gollin and had examined the photographs and physical description in the pen packet and expressed the opinion the person referred to in the pen packet was Gollin, who was present in the courtroom. Gollin's confession, admitted into evidence, reflected his race, date and place of birth which corresponded to the description in the pen packet.

Under the facts Gollin is a far cry from the instant case.

The State calls attention to the extradition cases of Ex parte Nelson, 594 S.W.2d 67 (Tex.Cr.App.1980); Ex parte Viduari, 525 S.W.2d 163 (Tex.Cr.App.1975); and Ex parte O'Connor, 336 S.W.2d 152 (Tex.Cr.App.1960), as authority for the proposition that a photograph is sufficient for identification of a defendant in that type of habeas corpus proceedings. In Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975), this Court specifically noted that an extradition proceedings is a different type of proceedings than a criminal trial and the strict rules of evidence do not apply, and the evidence is to be regarded liberally in favor of the demanding state.

The cases cited by the State are not applicable in a criminal trial where the issue of guilt or innocence or the allegations for enhancement of punishment are in issue.

The State also cites Dorsett v. State, 396 S.W.2d 115 (Tex.Cr.App.1965), and Jean v. State, 172 Tex.Cr.R. 518, 360 S.W.2d 148 (1962). Both of these cases involved prosecution for the subsequent offense of driving a motor vehicle on a public highway while intoxicated. There the court held that a physical description of an individual (with same name as defendant on trial) contained in the records of the Texas Department of Corrections which were admitted into evidence were sufficient to show that the defendant had been previously convicted, where the fact finder had an opportunity to observe the defendant and determine by comparison with the description in the record whether he was the same person so previously convicted as alleged. In Jean there was no objection to the records introduced and the driver's license number in the records corresponded with the driver's license number found on the defendant's person. In Dorsett in upholding the conviction the court cited Jean with approval.

In the instant case there was no physical description in exhibit 8 as...