Human v. State

however, light, pros- in another by prejudicing jury against him.” Viewed Id. hope legitimate 378. at ecutor could to elicit little by calling information Mrs. Newton as a significance of Roller is twofold. witness, goes to the fact heart of First, proposition stands for it holding in the instant case. The out- initially may innocent trial error be tainted nothing by prosecutor’s to ex- burst added of value to the trial a intentional efforts Second, jury and, indeed, coupled acerbate its effect. as a has with the infirm final improper its attention focused on testimo- arguments, posed significant potential a ny, impression the initial created said jury. inflame the instruction, testimony, by simple curable say com- Since we cannot errors in Both of escalates to cumulative harm. beyond mitted the trial were harmless large principles play these role doubt, Tex.R.App.Pro. reasonable see instant case. 81(b)(2), Ap- of the Court of harm, attempting show peals is affirmed. bystander’s exception perfected a bill proximity of the wit which he showed the ONION, P.J., DAVIS, J., concur jury, audibility of ness to the Newton in result. comments, and the fact that the witness’s WHITE, JJ., dissenting. MILLER and jury see and hear all members of the could suggesting transpired. The factors what ORDER harm lie in the cumulative effect of MILLER, improper arguments. Judge. Af outburst and the prosecutor jurors ter the invited Rehearing is de- The State’s Motion separate three consider the outburst on nied. occasions, great there is a likelihood that trial court appeal This is abated to the way. This is was affected some hearing instructions that it conduct a with judge particularly true because the trial procedure steps pursuant to the full prosecutor’s effectively ratified the final outlined Keeton v. plea to the outburst. As set out consider following 861, (Tex.Cr.App.1988) (opinion 7, appeals Brandley, ante note such “to abatement). improper. They dis abandon reason” are jury from the actual evidence of tract the IT IS SO ORDERED. or not the defendant committed whether Koller, he is the crime of which accused.

supra cases cited therein. at

Therefore, say cannot that the cumula we effect of these errors was harmless

tive See Tex.R.

beyond a reasonable doubt. 81(b)(2). App.Pro. HUMAN, Appellant, Daniel James suggests jury’s impo- State proves of a near-minimum sentence sition Texas, Appellee. The STATE harmless. This is an that the error was First, appellant position. untenable No. 042-86. in the face of a convicted of the offense Texas, Appeals of Criminal reasonably plausible hotly contested En Banc. Second, self-defense claim. the sentence imposed represent the minimum did March 1988. Appellant punishment under the law. Rehearing On Motion for im- years fewer could have received two 16, 1988. March probated sentence. prisonment or a 11, 1988. Rehearing May Denied argues Finally, the out- State because it was not burst was harmless any disputed fact issue. We

relevant to relevancy. agree as to with this observation Dallas, Baskett, Gibson,

Mike Robert T. appellant. for Knize, Atty. Daniel Co. Gene Waxahachie, McBride, Atty., Asst. Co. Rob- Huttash, Austin, Atty., for the ert State’s State. APPELLANT’S MOTION

OPINION ON REHEARING FOR TEAGUE, Judge. Rehearing is

Appellant’s Motion for granted. Febru- opinions filed this cause on

ary hereby ordered withdrawn 1988 are following is therefor. and the substituted court jurisdiction in the district To vest Human, that James Daniel and to establish committed the appellant, had hereinafter intoxicated, driving felony while offense the fol- the indictment State (1) lowing: appellant committed driving while intoxicat- primary offense ed, finally (2) previously he had been twice committing felony offense convicted intoxicated, (3) the driving while had alleged prior felony conviction first he was convicted final before become alleged prior conviction. the last 6701Z-1, see and Also Art. V.A.C.S. See Code, 12.42(d), V.T.C.A., Penal compare § thereunder, which collated and the cases regarding prior pleading proof concern alleged to enhance felony convictions to a criminal punishment of “habitual” and not years’ of 25 confinement minimum more than years’ prove confinement or life allegations the State to beyond its imprisonment in Department See, of Correc- reasonable example, doubt. Lit tions. (Tex.Cr. tles v. App.1984). found “guilty of Driv- ing Intoxicated, While charged deciding question of suffi effectively indictment.” This ap- convicted ciency of the evidence that is based either pellant of the felony driving offense of on direct or circumstantial evidence that while intoxicated. Punishment was also guilt, relates to this Court views evi jury assessed year at one confine- in light dence most to favorable ment the Ellis County Jail and a jury’s verdict. any We consider whether $2,000.00 fine. rational trier of fact could have found the essential elements of the beyond crime appeal, appellant, On direct through doubt, reasonable adopted which test was counsel, presented to the Waco Court of Virginia, 307, from Jackson v. 443 U.S. 99 Appeals points, error, grounds, four nee of 2781, (1979). S.Ct. 61 L.Ed.2d 560 See to-wit: “1. The admissible evidence is insuf- State, 932, (Tex. Burks v. 693 S.W.2d 937 prove prior ficient to the first conviction Cr.App.1985).1 Where the State’s case is indictment; alleged in the 2. The admissible upon evidence, based circumstantial prove evidence is insufficient to the second outstanding “exclusion of an reasonable prior alleged indictment; conviction in the hypothesis” may test be used as one means 3. Because the evidence is insufficient to making of the determination whether the prove prior alleged both the convictions See, example, evidence is sufficient. for indictment, this court must reverse the State, 301, (Tex. Garrett v. 682 S.W.2d 304 judgment entry judgment and order of of “ Cr.App.1984). instance, In that ‘if the acquittal; admitting 4. The court erred in supports evidence an inference other than one, State’s exhibit which contained evi- guilt appellant, finding then a of dence of extraneous acts of misconduct”. guilt beyond a reasonable doubt is not a unpublished opinion, the Court of ” finding.’ Garrett, supra, rational at 304- Appeals appellant’s sustained first two 305, quoting State, Denby from v. 654 S.W. points of error and reversed. See Human 457, (Tex.Cr.App.1983). 2d 464 Also see State, (Tex.App.-10th, v. No. 10-84-177- State, 854, 858-859 CR, 7, 1985). November Wilford (Tex.Cr.App.1987); State, Carlsen v. 654 out, previously pointed As the State (Tex.Cr.App.1983). S.W.2d 444 charged appellant committing pri- with yet any good We have not found reason mary driving offense of while intoxicated. why applied the above rules should not be In order to vest the district court with alleged to the situation where the State has jurisdiction, alleged the State also in one convictions, prior jurisdictional either for paragraph of the indictment that on March purposes punishment. or to enhance was convicted in the Therefore, apply we will them to those 204th Judicial District Court of Dallas situations. County F-78-8690-IQ in cause number of felony driving offense of while intoxi- case, prove In this instance the State’s cated, alleged paragraph another of prior allegations, its conviction was based the indictment that the 1979 convic- upon circumstantial evidence. The Court after final, tion had become on November Appeals of held that the evidence in- 1980, appellant was convicted in the 195th sufficient to establish Judicial District Court of Dallas person one and the same named in the cause number F-80-11997-MN of allegations, the felo- reversed the trial ny driving offense of while intoxicated. judgment, court’s entered a Having allegations against ap- made these acquittal appellant being as to convicted of was, pellant, course, offense, upon it incumbent and instructed the trial State, J., (Tex. (Tex.Cr.App.1987) (Teague, 1. dissenting opin- See also Combs v. 643 S.W.2d 709 Cr.App.1982); ion.) and Gold v. 736 S.W.2d 685 pellant “guilty Driving hav- a court While Intoxicat- to transfer the court ed, of- In the the indictment.” ing jurisdiction over misdemeanor charge, judge trial instruct- punishment Hu- driving intoxicated. See fense of while pursuant Art. latter, ed the to the terms of this supra. As to the man v. 6701Z-l(e), provides: “If it is supra, which sustaining appellant’s third amounted this an offense under However, shown on trial of find we do not point of error. previously has been article that the appel- Appeals ruled on the Court of where two more times of an offense convicted or of error. In order point lant’s fourth article, punishable under this the offense is remanding necessity eliminate (1) fine less than or more by: of not $500 Appeals, we will cause to the Court $2,000; (2) for confinement than error, it. point of and overrule address that days than 30 or more a term of not less petition granted for dis- We the State’s years imprisonment than two or cretionary in order to make review penitentiary a term less than state Ap- determination whether As days years.” or more than five appellant’s correctly conten- peals decided noted, jury appellant’s punish- the assessed not, re- Finding that it did we will tions. De- years’ confinement in the ment at judgment judg- the its affirm verse $2,000.00 partment of and a Corrections ment of the trial court. fine. out, previously pointed al- As the State fully for the reader to We believe that appellant primary leged that committed the reverse appreciate why understand and we intoxicated, driving of while offense he appeals court the of the of alleged paragraphs, jurisdic- in also two for carefully first read might helpful find it to 20, 1979, purposes, tional that on March into evi- the exhibits that were admitted appellant had been convicted in the 204th prior con- alleged dence that the concerned County in Judicial District Court of Dallas victions, which exhibits we have attached F-78-8690-IQ felony cause number of the opinion “Appendixes in the form of to this intoxicated, driving offense of while C, A, B, and D”. The evidence established 7, 1980, that on the 1979 November after the fingerprints the contained within that final, appellant conviction had was become appellant’s were to match exhibits shown 195th District convicted the Judicial prints. known Dallas cause number ways past has set out This Court the the felony F-80-11997-MN of offense de- may establish that the that the State driving while intoxicated. person on is one and the same fendant trial judge record that The reflects the trial allegedly previously convict- who has been jury alleged prior instructed the exhaustive, Although not exclusive or ed. trial, guilt stage convictions at the of the ways accom- may list of this be see the jury did not instruct the on same at the but State, that out v. plished is set Littles phase “ap- punishment of the trial. In the State, 500 S.W.2d supra. Also see v. Jones paragraph charge guilt, plication” on (Tex.Cr.App.1973), but also see 661 judge it jury the trial instructed the that State, 742 compare 578 S.W.2d Porter v. guilty felony appellant could find of the State, supra, (Tex.Cr.App.1979); Denby v. driving only if offense of while intoxicated submission), concerning the (On original that had appellant it found committed everything not a State’s that within fact driving alleged primary offense while on indi- “jail or record” a named “jail file” further that intoxicated and found under admissible evidence vidual becomes exception had that was hear- State established to the records the business it person and the same as that named find say one We do not rule evidence. alleged prior jury convictions. The was all of established necessary repeat to guilt: charge may proved in the to be ways further instructed on that a defendant find, person in an al- you you do so or if have named not one and same “[I]f thereof, We you leged prior or reasonable will find convictions. doubt to ordi- ap- it is sufficient state that guilty.” The found find that defendant 836 State,

narily proof (Tex.App.-13 is 672 that adduced S.W.2d 828 to establish Dist. P.D.R.), State, and see Hollins 1984) (No that the v. defendant on trial is and the one person same is alleged (Tex.Cr.App.1978). that named in 873 prior criminal conviction or convictions record reflects did not closely pieces puzzle. jigsaw resembles of a on complain appeal, direct nor does he com- pieces standing alone have lit- usually Court, plain allegations that the However, meaning. pieces tle when the prior went to convictions were insuffi- together, they are fitted usually form the give cient him what the notice of State picture person who committed prove against intended him. His real alleged prior conviction or convictions. complaint appeal was evidence And that is what resulted here. Consider- adduced was to establish insufficient ing pieces all of the of circumstantial evi- one he was and the same as that dence that went what the had to State alleged prior named convic- prove, picture appellant, only tions. appellant, being per- one and the same past It is true Court in the that this alleged prior son named in the convictions very strict has held State to a accounta was shown to exist. going alleged bility proof standard in its The issue as view it is we whether convictions, see, example, Corley evidence was rendered insufficient because State, v. 158 254 Tex.Cr.R. S.W.2d 394 there a material variance between State, (1953); Melancon v. 690 S.W.2d what was and what proved Boone (Tex.Cr.App.1963); the State. Green v. (Tex.Cr.App.1970); S.W.2d 273,

This that 153 219 Court in recent times has held Tex.Cr.R. S.W.2d 687 State, (1949); Colvin v. pleading for a the and and 172 variance between Tex.Cr.R. exist, proof 310, (1962), rendering the to thus the evi 357 S.W.2d 390 and that State, times, Plessinger v. dence to insufficient sustain what was al recent see su leged, pra, such have and lessened that standard. Previous must been material has Plessing prejudicial slightest ly, discrepancies to the defendant. See the would re State, er v. (Tex.Cr.App. judg court’s 536 S.W.2d 380 sult in a reversal of the trial States, 1976). however, Berger v. Today, United Also see ment sentence. the and 629, slight rigid 295 S.Ct. 1314 that a mere or variance U.S. 55 79 L.Ed. rule (1935); Israel, alleged 2 and Criminal La Fave and between what was what was 19(h), i.e., Procedure (1985), proved was sufficient to render the evi there must § tangible applies. longer a no be real and difference dence insufficient between allegations pleading the the the and turning point appears that this It Court’s proof E.g., support offered in thereof. There, Plessinger, supra. the State was Dictionary (1979 edition), Black’s Law pp. alleged had had that the defendant been 1392-1393. styled previously convicted in cause “The State, Martin v. In 152 Texas Lorrain Ples- Tex.Cr.R. State of vs. Delbert (1948), however, pointed singer, proof, 213 S.W.2d 548 this Court Jr.” The estab- following: purpose appellant previously out the “The of the had been lished that requirement proof correspond styled the to in that cause “The State of that convicted first, Plessinger, allegations the in the vs. Delbert Lorrain indictment are: Arizona that, put notwithstanding to an on notice as to the This Court held accused Jr.” variance, him; charge against second, discrepancy the and in order the and evidence can, necessary, plead that the defend- that he if same was sufficient to establish the person him attempt put to ant one and the same who was event a further was again jeopardy alleged alleged previously for the same act. to have been convicted omitted.)” (Citations (548-549). styled Also see in the cause “The State Texas vs. opinion Plessinger, concurring that Chief Justice Lorrain Jr.” Delbert following: Nye Corpus Appeals Christi Court of Court stated “While v. Blevins original filed on submission in here is not to con- carelessness involved be

837 not doned, say appellant prevent that in the numbers would we unable are surprise finding or he was misled has shown that from the record of the defendant (381). prejudice.” to his prior presenting a defense. conviction and (Tex. See v. 496 S.W.2d 578 Thomas (Tex.Cr. State, 619 In Hall S.W.2d v. State, 455 Cr.App.1973); Baity v. S.W.2d panel of this Court reversed App.1980), a (Tex.Cr.App.1970). We conclude it found judgment trial after court’s Also, ex is not to the variance fatal ... allega existed between that variance Colvin, Green, tent that and other cases tion, prior was based conviction holding they today, are conflict with our “indictment”, proof that upon an and the upon are overruled.” prior was based however, rehearing, On “information.” Thus, we will review the decision affirmed. This judgment trial was court’s Appeals held the evi- Court of rehearing if Plessinger, held that ap- dence insufficient to establish that was supra, expressly Melan- did not overrule pellant one and same con, Boone, supra, supra, Corley, su convictions, alleged prior in the thus named conflict, they pra, and cases were other causing a fatal variance between what was expressly This Court then then overruled. alleged proved and what was as to this present stated the rule of law that convictions, light to: Before a variance be Court subscribes of the more recent rule law that might pleading proof be tween the approved. Court has fatal, pun or and thus cause the conviction against reversed, appellant We will hold and will variance has ishment to be such ap- prejudicial both material to the of the court of reverse Hall, supra, The Court held in peals, repeating defendant. the above admonition: allegation “in that a variance between the is carelessness here “While the involved proof dictment” of “information” condoned, say not we are unable to be preju not a material variance that was surprise has or that shown defendant; thus, dicial to a fatal vari prejudice.” Plessing- he was misled his exist, did ance the conviction was er, supra. affirmed. point We out that has never (Tex.Cr. Cole S.W.2d 79 given he asserted that was not sufficient App.1981), again this Court reaffirmed the through the pleadings notice the what There, present of law. the Court rule was prove, he that ever State intended was a the confronted with variance between surprised, to his or that he was misled allegation of “Cause No. 87954” and the prejudice by discrepancies that existed holding In proof of No. 87594.” “Cause allegations and its the State’s between that this fatal did constitute a variance proof. Hollins, pointed the Court out su that point Exhib- pause We out that State’s pra, it held that had variance between the C”, 4, “Appendix photo- is a it our Number numbers “No. 9097” and “No. 9027” awas copy original and because of the exhibit variance, fatal The reversed. Court read to state this number can be Hollins, pointed supra, also out in that However, rather than F780890. Colvin, F78089O supra, this held Court that sup- clearly record we find that the variance 149896 and now between numbers variance, ports conclusion that the number constituted fatal Cole, however, In than supra, reversed. this be F780890 rather exhibit should pointed out in recent times it F780890. adopted rigid had a relaxation of the rules going of the state record Given past, of the found defendant had F-78-8690-IQ to the cause number suprise as prejudice failed to show or to the number, proof going to that cause variance, and the held: “When all other F7808690, being we although cause number proof supports allegations which are sufficient, was fa- transpositional otherwise error conclude that the variance cannot B, tal, appellant suprised preju- “Appendix State’s No. our or that or Exhibit D”. by person by This exhibit reflects that a discrepancy. diced name of James Daniel Human was convict- prove up felony order to ed in cause number F-80-11997-MN on that relates to cause number F-80-11997- October 1980 of the offense of MN, allegedly which on occurred Novem- driving while intoxicated and was assessed 7, 1980, ber the State had a custodian of costs, a fine of and court and was $750.00 City records for the of Dallas Police De- ordered confined until the fine and court concerning partment testify. He testified paid. costs were No. State’s Exhibit 1, copy Exhibit Number of which State’s personal which contains date information opinion “Appendix is attached to this photograph, following and a reflects the Through testimony, A”. this witness’ cer- “Disposition” part under the of the exhibit: jail City of the tain business records Fid. 195th Department Dallas Police were admitted F80-11997N into contains what evidence. exhibit City purports to be the entire of Dallas $750.00 person pertained record that to a 10-24-80 Human, name of James Daniel which is the offered into When this exhibit was same name that our has. This evidence, appellant specifically did not ob contains, among things, fin- exhibit other ject part of the on the exhibit gerprints person by of a the name of James ground proper part that it was not a of the Human, gives personal Daniel certain Jail, City of business records of the Dallas information, age, height, such as his then proper objection. which would have been a weight, eyes, occupation, color of hair and However, remaining part of the exhibit birth, place security date and social num- entity. was a business record of that Un ber, photograph etc. It also contains a der 599 S.W.2d 614 Hernandez v. person. It further lists the dates and part (Tex.Cr.App.1980),where of an exhibit offenses for which that had been not, part is admissible and is order City incarcerated the Dallas Jail. It also complain appeal about the admission disposition purported lists the of those exhibit, of the the defendant into evidence however, charges. testimony, There is no specific must have made the trial court a might from the custodian that reflect or part of the objection to the inadmissible Department indicate the Dallas Police how specifi did not exhibit.2 Because placed obtained the information that was part cally object “disposition” to the of the “disposition” section of under the what exhibit, ground it was not a record”, transcript “the labeled City proper record of the of Dal business page which is the last exhibit. Jail, evidence, though hearsay las and even “transcript” that is of only case on the under Chambers interest to us that is reflected under (Tex.Cr.App.1986), the information under “disposition” section of the exhibit is cause exhibit, as “disposition” part of the the alleged number “F80-11997 N”. The State copy judgment and sen well as the of the in the indictment cause number “F-80- tence, in possessed probative value deter 11997-MN”. find that these We numbers go mining sufficiency evidence the of the substantially are the same. ing alleged cause number F-80-11997 to in “fingerprint” expert MN, A testified that by the trier of and could be considered opinion fingerprints his the contained in the fact. appellant’s print

exhibit and matched. judgment and copy Because the of the judgment directly copy A and sentence not shown to be sentence were Ap- alleged appellant, in Court of that related to the conviction connected to the “probative peals that such was not number F-80-11997-MN was admit- held cause Appellant per- that was the same objection. evidence without See evidence ted into Hernandez, supra, appellant's Number 1 causes us to over- failure to of State’s Exhibit 2. Under ground specifically object portions of error. rule his fourth to the inadmissible

839 A prints. copy of known appellant’s previously convicted of match had been son who that related to sentence alleged jurisdiction- in the first the and the offense F-78-8690-IQ to and paragraph of indictment.” We dis- number alleged al the cause agree. within Daniel person by information contained name of James Such a the certainly appel- could used as cir- our Human, the be same name exhibit which is the prove appel- to that has, cumstantial evidence evidence with- into lant was admitted in person same named lant one and the was judgment and sentence objection. out prior F- alleged the conviction numbered Daniel Human was con- that James reflect 80-11997-MN. District Court in the 204th Judicial victed 20, 1979, for County on March of Dallas although and hold that there findWe driving felony offense of while intoxi- the al- slight discrepancy was a between fine and court assessed a $500.00 cated and F-80-1197-MN, number, leged and cause costs. F80-11997N, number, cause proved is more adduced circumstantial evidence upon Appeals relied Court of every reasonable to exclude than sufficient of v. 583 Court’s decisions Bullard appel- of identity except of that hypothesis (Tex.Cr.App.1976),and Daniel S.W.2d any further find and hold that lant. We (Tex.Cr.App.1979), conclude from trier of fact could rational to that the evidence was insufficient hold that circumstantial evidence admitted one and the to that establish person and the same was one alleged in cause num- person named same in number F-80- who convicted cause F-78-8690-IQ. reading A careful ber 11997-MN, as in indictment. cases, however, easily the facts of those Littles, supra, a point out that We also they inapplicable are to this that shows majority of this Court held even Littles, supra, held In this Court cause. description though there was not a detailed ... “To the extent Daniels [sic] evidence, but the evi- of the defendant holding as any or other case can be read finger- upon expert dence was based proof are exclusive manners that there testimony print photographs person’s and identity felo- defendant’s as a defendant, the evidence was suffi- enhancement, they are over- nies used establish that the defendant was cient to (32). Daniel, supra, trial ruled.” person that named one and the same were re- judgment and sentence court’s alleged prior convictions. in its proof the State failed versed because alleged felony In order establish was one and that the defendant establish IQ, in cause number F-78-8690 had convicted person who same been records had custodian State particular of Louisiana. State Department County Sheriffs of the Dallas County jail held that a Dallas This Court testify. This was shown per- card, the fact that the which verified up “fingerprint” expert, and he matched finger- by testimony of the son identified fingerprints State’s contained within was booked print expert as the defendant “Appendixes see Nos. our Exhibit pursu- Dallas Jail out of the C”, print appel- A known with the check”, “probation but which did ant to lant, opinion they in his made were actually had defendant establish person, appellant. one the same our placed pro- theft and been convicted of Louisiana, to establish “Appendix failed our bation State’s Exhibit Number to in the party as the referred C”, personal data informa- defendant certain reflects conviction; thus, jail card security tion, height, weight, Louisiana such as social the penalty phase of race, address, to the number, sex, cause num- was irrelevant and for and was inadmissible “F7808690”, person defendant’s trial related to ber that establishing the defendant’s Human, purposes of which is the James Daniel named 37.07, Art. V.A. pursuant record to appellant There was criminal name our has. same exhibit, the Louisiana only reference to C.C.P. photograph no in this however. entry on the Dallas to was the print on exhibit was shown “attempted County felony proof going Jail card: theft alleged to cause number F-78- Thus, 8690-IQ. probationer.” # 92803 Louisiana the Daniel, supra, absolutely make it facts of Fitting all of the circumstantial evidence proof the failed in clear that State its to pieces together, find we that the State identity being the establish defendant’s proved alleged prior the two convic- person one the same who had been and beyond tions a reasonable also doubt. We Daniel, in the Louisiana cause. convicted any evidence, find that there was not direct supra, clearly inapplicable is to this cause. circumstantial, or that someone than other Bullard, supra,

The facts reflect that as appellant person was to established be the alleged prior felony to one conviction there in alleged prior named the convictions. We testimony was no to connect the defendant find any further that rational trier of fact to cause. The failed the that State to ask could have so found. fingerprint expert a comparison to make fingerprint the unknown in an contained alleged The State in also the indict print the exhibit with known the defend- prior ment that to the commission ant. This Court held that the fact mere offense, primary appellant finally had been name that the card and the name F-80-1197-MN, convicted cause number alleged prior the the conviction were prior and that to the commission of both same was insufficient to establish the that primary prior offense and the above was person. defendant one and same finally conviction he was convicted in cause Bullard, supra, clearly inapplicable is also F-78-8690-IQ, alleged number and that the factually prior to this cause. conviction had The cir become final. appellant cumstantial evidence reflects that Although “the carelessness here involved placed was Dallas on Jail condoned, say is not to we are unable to pursuant 12/28/78 number cause appellant surprise that has shown or that and on same “F7808690” released that prejudice.” Plessing- he was misled to his It date. was also established that on er, supra. We hold find and that the cause 20, 1979, appellant March went to court “F-78-8690-IQ” “F7808690” numbers and convicted in cause F78- was number substantially are find the same. We also 8690-IQ and fine. It assessed $500.00 although slight that there hold was a appellant was further established that was discrepancy between numbers finally F-80- convicted cause number F-78-8690-IQ”, cir- “F7808690” Appel on 11997-MN November 1980. evidence, cumstantially adduced as to al- appeal not in the court lant did trial or on leged F-78-8690-IQ, cause number is more challenge finality sequence or the every than sufficient exclude reasonable convictions, prior felony two except appel- hypothesis identity that of anything appellate nor is there any lant. further and hold We find that might record reflect or indicate that trier of rational fact could conclude from they were final convictions. Cf. Jones the admitted circumstantial evidence that (Tex.Cr.App.1986). 711 S.W.2d 634 appellant was one the same Thus, clearly the evidence is sufficient allegedly who was convicted cause num- finding support implicit F-78-8690-IQ. ber finally con made: that after was again point has F-78-8690-IQ We out in cause on victed number given 20, 1979, never asserted that he was not suffi- March offense that was through pleadings cient notice of what prior committed to the commission of prove offense, finally intended to as to cause primary State he thereafter was F-78-8690-IQ; that he ever number convicted cause number F-80-11997-MN surprised; 7, 1980, or his that he misled to for an November offense prejudice by discrepancies that existed was committed commission allegation primary between State’s offense and after the convic- F-78-8690-IQ Therefore, tion had become final. of the court of appeals the judgment is reversed and Thus, clearly the State established both the the trial court is affirmed. finality alleged prior convictions and sequence , of those convictions. CAMPBELL, JJ., MILLER and

concur. A

APPENDIX B

APPENDIX

APPENDIX C D

APPENDIX

CLINTON, Judge, dissenting. I. Appellant alleging After primary was convicted of the felony offense of driving offense driving while April 16, 1984, intoxicated. Arti- while intoxicated on 670U-l(e), cle prose- V.T.C.S. In order to alleges subsequent indictment para- cute the felony instant cause as a offense graphs appellant previously had twice court, district ap- State driving been convicted of intoxicated, while pellant previously had twice been convicted day March, once “on the 20th 1979in the driving offense of while intox- Judicial District Court of Dallas 204[th] Apparently finding icated. allegation County, Texas, in Cause No. F-78-8690- true, finding appellant again IQ,” again and then day “on the 7th operated upon public a motor vehicle road November, 1980 in the 195th Judicial Dis- 16,1984, while April intoxicated on Texas, trict Court of County, Dallas guilty found him punish- and assessed his Cause No. F-80-11997-MN.” At trial the year ment at one county jail and a State copies judg- introduced certified fine of $2000.00. against ments and sentences one “James Human,” Daniel appeal bearing respective On Appeals Waco Court of reversed the unpublished conviction in an numbers in the same courts as thus al- State, Human v. opinion. leged. No. 10-84-177- (Tex.App. Waco, CR delivered November — In order to establish was the 7, 1985). The Waco Court found that the “James previously Daniel Human” convict- State’s evidence appel- failed to establish ed as judgments reflected and sen- lant was the same as had been tences, upon expert the State relied com- convicted in either of the offenses of parison fingerprints between driving while intoxicated that had been al- trial, taken at the time of appear- and those leged in the Consequently, indictment. ing records of the Dallas Police cause was remanded to the district court Department and Dallas Sheriff’s transfer, “with an instruction to if neces- alia, Office, containing, inter cause num- sary, appropriate the cause to a court of almost, though entirely bers are

jurisdiction [ajppellant may where be tried appearing identical judg- to those primary for the offense as a misdemean- ments and sentences. or.” Through the custodian of records of the reversing appellant’s conviction in this Department Dallas Police the State intro- appeals cause the in large court relied 1, consisting duced State’s exhibit no. of a upon panel opinion measure this Court’s fingerprint upon master card made the ar- Daniel v. (Tex.Cr. 585 S.W.2d 688 rest of “James Daniel Human” on March App.1979), upon opinion our en banc 17, 1975, mischief, photo- for criminal two (Tex.Cr. Bullard v. 533 S.W.2d 812 time, graphs presumably taken at that App.1976). petition discretionary In its review, what custodian identified as “a tran- State now contends that under of Bullard the evi interpretation script a correct of the record from the Dallas Police dence in this cause should have been found Department Ap- Criminal Docket Section.” identify appellant per sufficient to as the pearing transcript on the are several previously son twice convicted of individual, charges brought against in- this that Daniel alleged, “appears D.W.I. as to cluding one for “Inv. DWI” dated “08-27- Bullard, be conflict with” and that 80,” disposition for the shown reads: which therefore Daniel should be overruled. We “Fid. 195th granted petition the State's for discretion F80-11997-N ary Tex.R.App.Pro. review under Rule $750.00 200(c)(3) in order to examine the State’s contentions. 10-24-80”

849 identity the a defendant number F-80- as the The cause 24, in fact dated October Daniel, 11997-MN1 is prior convicted a offense. as- indicates that sentence was 1980. It 691; [supra]. at v. S.W.2d Bullard $750.00, day at fine of and that sessed on Establishing [a]ppellant’s by connection on had been committed that the offense fingerprints one does not his with exhibit 27, August 1980. automatically his connection establish Dep- testify County a Dallas Next to was the merely another exhibit because with “expert fingerprint uty who was an Sheriff happen to reflect exhibits identical two analyst” and a custodian identification relating prior to a of- or similar details Through him the State introduced records. fense.” appellant only min- taken fingerprints of that, con- properly asserts State now before, exhibit no. utes as State's strued, supra, v. does not Bullard also, no. a “Dallas as State’s exhibit con- support This card that the evidence is County Jail bookin card.” the conclusion gen- right fingerprint index and a tains the prior the appellant tie insufficient to Hu- description of Daniel eral a “James fact, very opposite. the To an offenses—in man,” it seems to show arrested who was extent, agree. I 2ND.” It also lists for “DWI on “102878” “F780869O,”2but an “indictment” number II. particular disposition of that no reflects State, supra, separate two Bullard Deputy testified that cause. The Sheriff into “con- admitted finger- jail cards were evidence comparison revealed that the his (State’s jail cards exhibit prints fingerprints on both taining official records and 4) nos. and were identical to those known upon con- one Charles Edwin Bullard made (State’s 2). appellant’s exhibit no. re- County for causes viction” two Dallas alleged under spectively to find the for enhancement In order was same judgments as the one the Code, 12.42(d), “Human” for Penal which V.T.C.A. § reflect convicted sentences was judgments and sentences were certified IQ F-80-11997- numbers F-78-8690 ex- fingerprint A subsequently introduced. MN, that jury the must first found have County Of- Dallas Sheriff’s pert from the jail police department the records the from fingerprints one fice testified that appellant. were those of and sheriff's office to be jail matched those known the cards clearly fingerprint identification estab- defendant’s, the but failed to reveal However, the court of lished this fact. comparison prints on the his result of link appeals established be- considered those of the defend- jail card with second jail judgments records and the tween Accordingly, Court held ant. support to be too tenuous to and sentences iden- sufficient to evidence was while the jury finding also the “Bullard” convict- tify the defendant whose are reflected “Human” convictions conviction, ab- ined the first latter documents. Observed prints on testimony that sence of appeals: court of ren- defendant’s jail card were the second nor cause numbers “Neither identical to connect evidence insufficient are dered the identical names sufficient establish jury, Again presence of the police out of the presence of the 2. 1. Out of “F-78- letter at the end of the cause number custodian testified the cause number was difference between purposes judgment, of identification appearing IQ” court, any variance in the letters of the card number “F7808690” indictment change He be attributed of courts. could asserted that it was a dash in the explained the absence of unlikely ‘be there would system Dallas Sheriff's computer like N on it and one case number that with an Department. other the words, case number with an MN"—in same (All emphasis supplied indi- unless otherwise him, discrepancy as we understand cated.) probably in would not indicate different letters causes. 850 prior

him second to the conviction.3 provide independent used to identification of a invariably convicted have been finding The basis of the Court’s part conviction, the record ob- prior evidence as to the first convictionwas governmental tained from the same enti- sufficient is not clear from the face of the 5 Id., ty.” held, at 691. Thus it was opinion, authority and no is cited. Presum- effect, jail County that a card out of Dallas ably, though “identity of names reflecting probation Daniel’s conviction and id., sufficient[,]” nonetheless, at identi- offense, for a similar under the same cause name, offense, number, ty of county undesignated number but from some Loui- and court was.4 parish, siana court and sufficiently was not State, supra, In Daniel v. records of a linked to the Louisiana records of convic- Parish, theft conviction from Caddo Louisi- tion to show that Daniel was the man then ana, 92,803, by No. Cause which one “Neil and there convicted. Douglas placed probation, Daniel” was perceive I can no irreconcilable conflict were admitted evidence to show the de- holdings between the of Bullard and Dan- prior fendant’s criminal record as autho- iel, and thus would decline the State’s invi- 37.07, 3(a), by rized Art. A V.A.C.C.P. § view, my tation to overrule the latter. jail later card from the Dallas Sher- the evidence in the instant case falls some- iff’s Office in the same name then where between that found sufficient admitted, containing fingerprints shown to Bullard, irrelevant, and that found and jail be Daniel’s. The offense noted on the inadmissible, in hence Daniel. Therefore “probation card was check” and the stated the Court should endeavor to draw the line “probation complet- reason for release was Instead, distinctly. more plurality space ed.” A for “remarks” reflected the Judges today simply deems these cases entry: “attempted felony theft #92803 cause, “clearly inapplicable” to this without probationer.” panel A Louisiana of this holds, plurality elaboration. The somewhat rejected the State’s contention that paradoxically, both that the “circumstan- identity jail of cause numbers on the here, tial” evidence was sufficient and that judgment card and the Louisiana was suffi- in the did not “variance” numbers work cient to establish Daniel was the man con- surprise to the and detriment of the ac- Along way victed Louisiana. it was straying express cused. To so far from the grant observed that search of our cases re- purpose of our of review in this “[a] cause, fingerprints I veals that which have been dissent. holding, 3. In so the Court observed: "The identi- dates and amount reflected on the docket sheet Id., ty conviction, of names was not sufficient.’’ at 816. prior in the were sufficient to link Ironically, independent sentence, review of the record in jail judgment card to the and and jail Bullard now reveals that both the card and prove man earlier thus to the defendant was the judgment corresponding sentence to the State, See also S.W. convicted. Anderson v. alleged prior second conviction in that cause (Tex.Cr.App.1974). 2d But see Rose v. relate to one "Charles Edward Bullard.” (Tex.Cr.App.1974), S.W.2d 547 in which it jail containing defend was held that a card (Tex.Cr.App.

4. In Jones v. 500 S.W.2d 661 prior fingerprints, ant’s dated some months 1973), judgment State introduced and sen judgment name the date of a defendant’s prior tence in a docket sheet for a theft, reflecting that at the time of arrest for proof history of the criminal of the defendant theft, "charged" 37.07, 3(a), was not shown to he was with V.A.C.C.P. § as authorized Art. conviction,” part Additionally, jail be "a of the record of the State introduced a card deputy sheriff testified had been made into "constitut which upon and thus its admission evidence Id., the defendant’s arrest on a motion to error.” at 548. No mention is ed reversible cause, containing probation revoke in the same opinion as to whether the made in the Court’s fingerprints This shown to be defendant’s. correspond jail card contained a cause number deputy testimony, sheriff’s Court held that ing to that of the of conviction numbers, identity and notations the appearing of cause theft. showing the date of card revoke, filing of a motion to date original. 5.Emphasis bond, corresponded to amount of a later which

851 offense, similarity III. name and and between jail “indictment” listed on the card number Turning to jail first the card and tran judgment and cause number of the and 1, in script contained State’s no. as exhibit discrepancy Though sentence. the be- Daniel, supra at accept in we the partially tween was ex- these numbers of the matters asserted truth in this exhibit 2, ante, jury plained, see note the was not it was admitted because the trial court explanation. privy to Neither the date this exception prohibition against as an to the offense, it of the court in which was Thus, hearsay evidence.6 State's exhibit disposition prosecuted, nor the ultimate of appel 1 establishes that on no. “08-27-80” jail card. On appears the case on the this arrested for some lant was manner of driv jury of state the evidence a rational could (“Inv.DWI”), ing while intoxicated con was card, jail not have found that the shown to offense under victed for this cause number appellant’s, sufficiently be linked to “F80-11997 N” in the court “195th” on prove judgment as to and sentence “10-24-80,” punishment and his assessed beyond a reasonable doubt that judgment in The number at cause $750.00. “Human” See convicted. Daniel F-80-11997-MN, of the out 195th Judicial State, State, supra; Rose v. of County District Court Dallas and dated (Tex.Cr.App.1974). 24, 1980, October shows a for felony D.W.I., states that the offense was plurality judicially seems divine August 27,1980, committed and reflects “that the ‘F7808690’ cause numbers and punishment that was indeed at a assessed ‘F-78-8690-IQ’ substantially are Though of num fine the cause $750.00. At is self p. same.” 840. That not evident different, slightly my bers are in view Nevertheless, having to me. thus rendered sufficiently parallels support are definite to jail the “indictment” number card finding card, jury’s jail a rational that the cause “substantially similar” to the number containing fingerprints appel known to be prior conviction, plurality then lant’s, corresponds judgment to the and tacitly no from concludes what case prove alleged admitted to up sentence held, viz., identity (or has yet that prior conviction in cause number F-80- number is identity) near name and cause State, supra; 11997-MN.7 Bullard v. enough, more, jail to link a card without (Tex.Cr. Jones v. 600 S.W.2d 661 containing fingerprints of the accused to agree App.1973). ap I that court of beyond a prior judgment sentence rea- and finding peals they erred did not. agreed Iif that the sonable Even doubt. identical, join numbers I here were 4, however, As exhibit no. I for State's appeals court its assessment agree the court of it appeals with identity of cause is not name and number establish same failed to was the alone sufficient. “Human” convicted cause number F-78- alleged. 8690-IQ, only correlation Because was insufficient the evidence jail two between the card exhibit State’s establish the earlier driving while intoxi- sentence cause convictions F-78-8690-IQ cated, identity appeals is was correct number court 3731a, 1, V.A.C.S., judicially County. know these facts. See former Art. now Tex. Dallas We § 6. (8). 803(6) Cr.R.Evid.Rule Bell v. 313 S.W.2d 606 166 Tex.Cr.R. 13.18, (1958), V.A.C.C.P. and Arts. 4.01 and Giv- course, strictly speaking, Of Police 7. the Dallas name, offense, number, parallels en the Department County and the Dallas District court, disposition, I am dates and satis- relevant part parcel tire Clerk’s Office readily infer could fied that rational Daniel, governmental entity,” supra, at "same card, though a record of Dallas However, certainly it is 691. knowledge common within judg- corresponded Department, Police City of Dallas is located in a record of the ment and which was sentence County, that a Dallas D.W.I. commit- Clerk's Office. Dallas District likely City prose- of Dallas ted in the would in a or criminal cuted district district court “acquit” appellant primary of “the offense 6701Z-l(e), felony” supra. as a under Art. Wayne WARE, Appellant, Albert Cf. Carter v. (Failure

(Tex.Cr.App.1984) prove up Texas, pur Appellee. defendant’s “habitual offender status” The STATE of 12.42(d), Code, suant to V.T.C.A. Penal § No. 395-83. during appellant’s precluded first trial retrying appellant State from as an habit Texas, Appeals Criminal primary ual offender under the same of En Banc. fense.) Moreover, pri- because the issue of or April convictions was submitted to the at 1988. trial, guilt/innocence phase

is entitled to a new trial on the issue

guilt punishment and innocence as well as offense, primary new Article 44.-

29(b), V.A.C.C.P., notwithstanding. The appeals of the court of should affirmed, remanding

therefore be the cause court,

to the district with instructions to competent jur

transfer same to a court of retried,

isdiction. There could be convicted, resentenced,

and if under the 6701Z-l(b) (c) (d),

provisions of Art. or Bullard, parte Cf.

V.T.C.S. Ex 679 S.W. (Tex.Cr.App.1984) (Though

2d 12 it was determined,

ultimately contrary to our first 816, viz;

holding at 533 S.W.2d at “the may again attempt prove

State purpose enhancing

convictions for the

punishment[,]” that Bullard could provi

retried as an “habitual” under the Code, 12.42(d),

sions of Y.T.C.A. Penal he § “repeat”

could nevertheless be retried as a 12.42(a),supra,

offender under since the § proven sufficiently

evidence had one of the prior convictions.)

two stated, respectfully

For the reasons I

dissent.

ONION, P.J., DUNCAN, J., join.

Case Details

Case Name: Human v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 16, 1988

Citation: 749 S.W.2d 832

Docket Number: 042-86

Court Abbreviation: Tex. Crim. App.