COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00149-CR
JIMMY PRICE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
In two points, Appellant Jimmy Price appeals his conviction for unlawful
possession of a firearm by a felon, asserting that the State did not present
sufficient evidence to support a guilty verdict and that the trial court erred by
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See Tex. R. App. P. 47.4.
overruling Price’s objection to the introduction into evidence of documents to
prove a prior felony offense as an element of the offense. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Price was indicted for unlawful possession of a firearm by a felon after a
routine traffic stop on February 17, 2009. Texas DPS Trooper Darren McKaye
testified that while on patrol that morning, he saw a black Dodge truck traveling in
excess of the speed limit in Oakridge, east of Gainesville. Upon making a traffic
stop of the truck, Trooper McKaye approached the vehicle and saw a rifle on the
floorboard of the truck. He asked the driver, Price, if he had a firearm in the
vehicle, and Price responded that he did. Trooper McKaye ran routine checks on
Price’s driver’s license and learned that he was a felon. Trooper McKaye
testified that the gun in Price’s truck, a Winchester .30-30 rifle, was fully loaded
and within Price’s reach on the passenger side floorboard. Trooper McKaye
arrested Price, and a subsequent inventory of Price’s truck revealed nineteen
rounds of ammunition in the center console.
Texas DPS Trooper Barrett Brown was a training officer working with
Trooper McKaye when Price was arrested. Trooper Brown testified about the
arrest and identified in court the rifle that he removed from Price’s truck; the
trooper explained that the rifle was loaded and appeared to be fully operational
when he seized it from Price’s truck but that it had been disabled in order to bring
it into the courtroom.
The jury convicted Price of unlawful possession of a firearm by a felon and
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assessed his punishment at eighteen years’ confinement. The trial court
sentenced him accordingly.
III. SUFFICIENCY OF THE EVIDENCE
In his first point, Price argues that the evidence is insufficient to support the
jury’s verdict of unlawful possession of a firearm by a felon. See Tex. Penal
Code Ann. § 46.01 (Vernon Supp. 2010). Specifically, he argues that the State
was required but failed to prove that Price possessed ―a working firearm.‖
A. Standard of Review
The court of criminal appeals has held that there is no meaningful
distinction between the legal sufficiency standard and the factual sufficiency
standard. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).
Thus, the Jackson standard, which is explained below, is the ―only standard that
a reviewing court should apply in determining whether the evidence is sufficient
to support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt.‖ Id.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
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This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),
cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether
the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We
must presume that the factfinder resolved any conflicting inferences in favor of
the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778.
B. Law on Unlawful Possession of a Firearm by a Felon
A person who has been convicted of a felony commits the offense of
unlawful possession of a firearm by a felon if he possesses a firearm at any
location other than where he lives. Tex. Penal Code Ann. § 46.04(a)(2) (Vernon
Supp. 2010). A firearm is defined as ―any device designed, made, or adapted to
expel a projectile‖; the statutory definition does not require the firearm to have the
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capacity to do so. Id. § 46.01(3); Thomas v. State, 36 S.W.3d 709, 711 (Tex.
App.—Houston [1st Dist.] 2001, pet. ref’d) (―Even if the clip and firing pin are
missing at the time of the offense, a pistol is still a firearm under Section
46.01(3).‖). The State need not prove that a firearm was in any particular
condition to prove that it is a firearm. See Wright v. State, 582 S.W.2d 845, 847
(Tex. Crim. App. [Panel Op.] 1979) (―Neither the statute nor the definition of
deadly weapon in Section 1.07(11) of the Penal Code suggests that a firearm
must be operable.‖); see also Lewis v. State, 852 S.W.2d 667, 669 (Tex. App.—
Houston [14th Dist.] 1993, no pet.) (holding that State was not required to prove
that firearm was capable of firing in prosecution for unlawful possession of a
short-barrel firearm) (citing Tolbert v. State, 246 S.W.2d 896, 897 (Tex. Crim.
App. 1952), and Johnson v. State, 571 S.W.2d 170, 174 (Tex. Crim. App. 1978)).
C. Sufficient Evidence of a Firearm
Here, evidence at trial showed that the firearm found in Price’s truck was a
fully-loaded Winchester .30-30 rifle and that Price admitted to Trooper McKaye
that he had a firearm in his truck. Contrary to Price’s assertion on appeal, the
State did not need to prove that the rifle was operational. See Tex. Penal Code
Ann. § 46.01(3); Wright, 582 S.W.2d at 847; Lewis, 852 S.W.2d at 669. Viewing
the evidence in the light most favorable to the verdict, we hold that a rational trier
of fact could have found beyond a reasonable doubt that Price was in possession
of a firearm. Consequently, we hold that the evidence is sufficient to support
Price’s conviction, and we overrule Price’s first point. See Jackson, 443 U.S.at
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319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
IV. EVIDENCE OF PRIOR FELONY CONVICTION
In his second point, Price argues that the trial court erred by overruling his
objection to the admission of a certified pen packet as evidence of his prior felony
conviction. He argues that the State did not specify the hearsay exception
applicable to the pen packet and that it did not establish the predicate facts for
admission, either by testimony from the custodian of the record or other qualified
witness or by affidavit.
An appellate court reviews a trial court’s decision to admit evidence over
objection under an abuse of discretion standard and will not reverse that decision
absent a clear abuse of discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex.
Crim. App. 2008); Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
To establish that the defendant has been convicted of a prior offense, the
State must (1) prove the existence of the conviction and (2) link the conviction to
the defendant. Flowers v. State, 220 S.W.3d 919, 921–22 (Tex. Crim. App.
2007); Davis v. State, 268 S.W.3d 683, 715 (Tex. App.—Fort Worth 2008, pet.
ref’d). No specific document or mode of proof is required to prove these two
elements. Flowers, 220 S.W.3d at 921; Paschall v. State, 285 S.W.3d 166, 174
(Tex. App.—Fort Worth 2009, pet. ref’d). The State may establish a defendant’s
previous conviction through certified copies of the judgment and sentence. Beck
v. State, 719 S.W.2d 205, 209 (Tex. Crim. App. 1986).
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A document may be properly authenticated under either rule of evidence
901 or 902, and it need not be authenticated under both. Reed v. State, 811
S.W.2d 582, 586 (Tex. Crim. App. 1991). Rule of evidence 902 provides for self-
authentication of domestic public documents under seal. Tex. R. Evid. 902(1).
Extrinsic evidence of authenticity as a condition precedent to admissibility is not
required with respect to these documents. Tex. R. Evid. 902. Instead, ―[a]
document bearing a seal purporting to be that of . . . any State, . . . or of a . . .
department, officer, or agency thereof, and a signature purporting to be an
attestation or execution‖ is self-authenticating. Tex. R. Evid. 902(1).
Here, over Price’s objection, the trial court introduced into evidence as
State’s Exhibit 2 a pen packet relating to Price’s prior felony conviction for
aggravated assault on a peace officer, with an extraneous conviction redacted.
State’s Exhibit 2 contains photos of Price, identifying him by his name and TDCJ
ID number; a copy of the judgment and sentence for his September 20, 1995
felony conviction for aggravated assault on a peace officer; and a fingerprint card
reflecting that he was arrested on July 28, 1994 for that offense and including his
TDCJ ID number, his date of birth, his height and weight, and a notation that he
has an ―ampt lft leg below knee.‖ The name on the fingerprint card is misspelled
as ―Mimmy Dewayne Price,‖ but it includes the inmate’s signature ―Jimmy.‖
State’s Exhibit 2 also contains an affidavit of the custodian of records,
certifying that the records are correct copies of original records and bearing her
signature and the seal of the State of Texas. Thus, as the trial court noted in
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overruling Price’s objection, State’s Exhibit 2 was self-authenticating under the
rules of evidence. See Tex. R. Evid. 902(1), 902(4) (providing that copies of
official records may be self-authenticated via certification as to their accuracy by
the custodian or other authorized person); Hull v. State, 172 S.W.3d 186, 190
(Tex. App.—Dallas 2005, pet. ref’d) (holding document properly self-
authenticated under rule of evidence 902(1) because it contained seal of county
court and signature of court clerk); Barker v. State, 931 S.W.2d 344, 348 (Tex.
App.—Fort Worth 1996, pet. ref’d) (same).
Additionally, to the extent that Price’s complaint at trial and on appeal is
that the pen packet constituted inadmissible hearsay, we hold that the trial court
did not abuse its discretion by admitting State’s Exhibit 2 over Price’s hearsay
objection. Hearsay is a statement, other than the one made by the declarant
while testifying at a trial or hearing, offered into evidence to prove the truth of the
matter asserted. Tex. R. Evid. 801(d). In order for hearsay to be admissible, it
must fit into an exception provided by a statute or the rules of evidence. Tex. R.
Evid. 802; Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). Rule of
evidence 803(8) creates an exception to the hearsay rule for public records and
reports unless the records indicate a lack of trustworthiness. Tex. R. Evid.
803(8). Likewise, rule 803(22) creates an exception for judgments of previous
convictions. Tex. R. Evid. 803(22).
State’s Exhibit 2 falls squarely within these exceptions, and nothing in the
record indicates that the documents lacked trustworthiness. See Tex. R. Evid.
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803(8), (22). Furthermore, because the trial court admitted the pen packet
without requesting that the State provide a basis for its admissibility, the State
was not required to voice an exception to the hearsay rule. See, e.g., Ortega v.
State, 126 S.W.3d 618, 620 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)
(holding that proponent of hearsay evidence is not required to voice exception to
hearsay rule when trial court immediately rules in proponent’s favor).
We hold that the trial court did not abuse its discretion by overruling Price’s
objection to the documents introduced to prove his prior felony conviction. See
McCarty, 257 S.W.3d at 239; Moses, 105 S.W.3d at 627. We overrule Price’s
second point.
V. CONCLUSION
Having overruled Price’s two points, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 17, 2011
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