Ross, Earnest
PD-0937-15
| Tex. App. | Sep 17, 2015Background
- Earnest L. Ross was convicted by a jury of engaging in organized criminal activity (EOCA) and unlawful possession of a firearm by a felon; after a prior appeal reversed punishment, he was retried on punishment and received 42 and 20 years, respectively.
- The State used two prior convictions (a 1981 burglary and a 2001 aggravated assault with a deadly weapon) to enhance punishment; the 1981 conviction occurred when Ross was 16 and originated in juvenile proceedings.
- Ross sought to collaterally attack the 1981 judgment as void for lack of an affirmative certification/transfer order showing he was bound over to adult court; the district clerk’s file contained references asserting a certification/transfer, but no juvenile clerk file or a transfer order was found.
- The State introduced fingerprint identification evidence linking Ross to the 1981 file; the fingerprint examiner admitted he did not fully follow ACE-V verification and that fingerprint comparison can be subjective.
- Ross requested (1) exclusion of the 1981 judgment, (2) exclusion of fingerprint expert testimony, (3) an instruction under Penal Code § 8.07(b) (age affecting criminal responsibility), and (4) mistrial based on prejudicial eyewitness identification issues; the trial court denied relief on all points and the court of appeals affirmed.
Issues
| Issue | Ross's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of 1981 burglary judgment used for enhancement | The 1981 judgment is void because the record lacks an actual certification/transfer order showing juvenile court waived jurisdiction | Clerk’s file contains multiple recitations (motions, attorney time entries, DA motion) indicating a certification/transfer; judgments are presumed regular and Ross must affirmatively show voidness | Court held Ross failed to overcome the presumption of regularity; the 1981 conviction was not shown void and was admissible for enhancement |
| Admissibility of fingerprint expert testimony (ACE‑V) | ACE‑V is scientifically unreliable per NRC report; examiner did not follow ACE‑V verification step, so testimony is unreliable and should be excluded | Courts have treated fingerprint comparison as generally admissible; deficiencies/verification problems go to weight, not admissibility; jury can consider lack of peer verification | Court held ACE‑V not inherently unreliable as a matter of law here; even if verification was lacking, that affects weight; testimony admissible |
| Request for Penal Code § 8.07(b) jury instruction (age affecting criminal responsibility) | Evidence of acts before age 17 triggered the trial court’s duty to give an § 8.07(b) instruction | Because the 1981 judgment was properly used for enhancement, § 8.07(b) was not law applicable to the case | Court held § 8.07(b) instruction not required because Ross did not rebut the regularity of the 1981 conviction |
| Motions for mistrial based on eyewitness identifications | Jury exposure to an in‑court ID and ambiguous photo‑ID was incurably prejudicial and required mistrial despite curative instructions | No prosecutorial misconduct shown; trial court promptly gave limiting instruction and later excluded the identification for substantive use; any harm was curable and outweighed by strength of evidence | Court held trial court did not abuse discretion denying mistrial; instruction and circumstances made prejudice not incurable |
Key Cases Cited
- Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App.) (collateral attack standard for prior convictions used for enhancement)
- Breazeale v. State, 683 S.W.2d 446 (Tex. Crim. App.) (presumption of regularity of judgments; defendant must affirmatively show defect)
- Light v. State, 15 S.W.3d 104 (Tex. Crim. App.) (presumption extends to records filed in lower court)
- Johnson v. State, 725 S.W.2d 245 (Tex. Crim. App.) (presumption of regularity applies when prior juvenile conviction used for enhancement; defendant must affirmatively show absence of transfer)
- Moss v. State, 13 S.W.3d 877 (Tex. App.—Fort Worth) (filing of transfer order with district clerk not jurisdictional if certification was actually rendered)
- Cordary v. State, 596 S.W.2d 889 (Tex. Crim. App.) (juvenile transfer absent — district court lacked jurisdiction; judgment void)
- White v. State, 576 S.W.2d 843 (Tex. Crim. App.) (record must affirmatively show examining/transfer hearing in juvenile-origin cases)
- Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App.) (framework for admissibility of scientific evidence: theory, technique, and proper application)
- Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App.) (fingerprint comparison testimony generally admissible)
- Hernandez v. State, 116 S.W.3d 26 (Tex. Crim. App.) (if court has validated a technique, proponent need not re-prove first two Kelly prongs)
- Forward v. State, 406 S.W.3d 601 (Tex. App.—Eastland) (trial court did not abuse discretion admitting fingerprint testimony despite lack of peer verification)