Littles v. State

OPINION ON STATE’S MOTION FOR REHEARING

McCORMICK, Judge.

Appellant was convicted of aggravated robbery. Punishment, enhanced by two prior convictions, was assessed at life imprisonment.

The enhancement allegations of the indictment alleged the following:

“Before the commission of the offense alleged above, (hereafter styled the primary offense), on MAY 18, 1970, in Cause No. 145613, in the 179th District Court of Harris County, Texas, the Defendant was convicted of the felony of burglary with intent to commit theft.
“Before the commission of the primary offense, and after the conviction in Cause No. 145618 was final, the Defendant committed the felony of unlawfully, intentionally and knowingly fail to appear in the District Court, as charged in the indictment and was convicted on JULY 22, 1977, in Cause No. 258177, in the 209th District Court of Harris County, Texas.”

During the punishment phase of the trial, Deputy Juan Jorge of the Harris County Sheriffs Department was qualified as a fingerprint expert. He testified that twenty minutes prior to his testimony he had taken the fingerprints of appellant and placed them on State’s Exhibit 6. He further testified that he had compared the fingerprints contained in State’s Exhibit 7, a pen packet regarding the first alleged prior felony, with the prints on State’s Exhibit 6 and found that both sets of prints were made by the same person. When Jorge began testifying as to the fingerprint comparisons between State’s Exhibit 6 and State’s Exhibit 8, the pen packet relating to the second alleged prior conviction, it was discovered that the data on the fingerprint page in State’s Exhibit 8 referred to a theft conviction, rather than the conviction for failure to appear. In response to defense objections, the trial court ordered that the fingerprint page of State’s Exhibit 8 be removed before it was submitted to the jury. Remaining in the pen packet for the jury’s consideration was a photograph of appellant, and the judgment and sentence for the conviction.

On original submission to the Court of Appeals, appellant’s ground of error was worded as follows:

“There was a fatal variance in the punishment stage of the trial between the allegations in the indictment and the proof as to appellant’s prior convictions.”

Appellant argued that the State never proved that the appellant was the person to whom the enhancement allegation alleging a prior conviction for failure to appear referred. He further argued that the State’s proof failed because there was no detailed description of the named person along with the photograph as mandated in Gollin v. State, 554 S.W.2d 683 (Tex.Cr.App.1977).

The Court of Appeals rendered an unpublished opinion, treating appellant’s ground of error as a procedural issue rather than a sufficiency issue. The Court held that the trial court erred in admitting into evidence a defective pen packet because the photograph was not accompanied by a detailed description of the defendant as required in Gollin. Thus, appellant’s conviction was reversed and remanded for a new trial. Littles v. State, No. 01-82-0107-CR, delivered February 24, 1983 (Tex.App.-Houston [1st Dist.] 1983).

We granted the State’s petition for discretionary review to review the Court of Appeals’ decision. On original consideration of the State’s petition, the majority of this Court affirmed the opinion of the Court of Appeals. Now, on rehearing, after careful consideration, we find that our original opinion was incorrect. Viewing the evidence in the light most favorable to the jury’s verdict, we hold that there was sufficient evidence to support the jury’s finding that the enhancement allegations were true.

*31Gollin v. State, supra, upon which the Court of Appeals relied on is extremely helpful to our determination. In Gollin, State’s Exhibit 18, a pen packet showing Gollin’s prior conviction for passing a forged instrument, contained a judgment, sentence, commitment, photographs, fingerprints, and a physical description of Gol-lin. At trial, the State attempted to prove that Gollin was the same person previously convicted of the offense set out in State’s Exhibit 18 through the use of fingerprint comparison. However, because the State did not qualify its witness as an expert in fingerprint comparison, the State’s attempt at fingerprint proof failed. The State then put a deputy on the stand who testified that he was acquainted with Gollin and had examined the photograph and physical description of Gollin contained in State’s Exhibit 18 and in his opinion the person in the exhibit was Gollin. On appeal, Gollin argued that the State's Exhibit 18 should not have been admitted because the State failed to prove that he was the same person named in the exhibit. In its opinion, the Court began its analysis by recognizing that there were at least three nonexclusive means of proving identity for purposes of enhancement. They were: (1) by testimony of a witness who identifies the accused as the same person previously convicted; (2) by introduction of certified copies of the judgment and sentence and record of TDC or a county jail including fingerprints of the defendant, supported by expert testimony identifying them as identical with known prints of the defendant; and (3) by stipulation or judicial admission of the defendant. Cain v. State, 468 S.W.2d 856 (Tex.Cr.App.1971); Daniel v. State, 585 S.W.2d 688 (Tex.Cr.App.1979). The Court went on to note that in a variety of cases, including a DWI case [Dorsett v. State, 396 S.W.2d 115 (Tex.Cr.App.1965)], a revocation of probation case [Johnson v. State, 410 S.W.2d 785 (Tex.Cr.App.1967) ] and even in extradition cases [Ex parte Viduari, 525 S.W.2d 163 (Tex.Cr.App.1975) and Ex parte O’Connor, 169 Tex.Cr.R. 579, 336 S.W.2d 152 (1960) ], the evidence was held to be sufficient to prove that the accused was the same person named in the record in question where that record contained photographs and a detailed physical description of a named person and the accused was present in court for the fact finder to compare his appearance with that person described in the record.1 Applying these holdings to the proof at trial, the Court held that the evidence was sufficient to prove Gollin’s identity.

In the instant case there was no physical description of appellant contained in State’s Exhibit 8. We are mindful, however, that the methods outlined in Gollin are not the sole means of proving up identity with respect to a prior conviction. And, as we did in Gollin, we find it helpful to look at other cases where similar proof was found sufficient to prove the accused’s identity.

In two cases involving convictions for DWI, Dorsett v. State, supra, and Jean v. State, 172 Tex.Cr.R. 518, 360 S.W.2d 148 (1962), the defendant claimed the evidence was insufficient to show he had a prior DWI conviction. In both cases, the State introduced DPS records. These records showed that both defendants had been issued a driver’s license and had later been convicted of DWI. In each case the records also contained a physical description of the defendant. This Court, finding the evidence sufficient in both cases, noted that the jury had the opportunity to observe the defendants at trial and compare the defendants’ appearance with the descriptions contained in the DPS records. Applying these holdings to the instant case, we find that the application of a juror’s subjective interpretation to a written de*32scription of an individual would lead to a far less dependable result than that required when the jury is asked to identify an individual by means of a photograph.

Looking to extradition cases for guidance, as did the Court in Gollin, we find that it has long been an accepted practice to identify the accused by means of a photograph. Ex parte Henson, 639 S.W.2d 700 (Tex.Cr.App.1982); Ex parte Nelson, 594 S.W.2d 67 (Tex.Cr.App.1979) (Opinion on Original Submission); Ex parte Viduari, 525 S.W.2d 163 (Tex.Cr.App.1975). In Ex parte O’Connor, 169 Tex.Cr.R. 579, 336 S.W.2d 152 (1960), the State introduced into evidence photographs taken by a Harris County assistant district attorney and an affidavit signed by a Pennsylvania store detective which stated that the photographs depicted the man arrested in Pennsylvania and wanted on the extradition warrant. This Court held that such evidence was sufficient to enable the trial judge to reject O’Connor’s testimony that he was not the man they were seeking.

Reviewing the facts of the instant case, we find that the State properly proved appellant’s identity as to the first prior conviction through the use of fingerprints. The records of this conviction were contained in State’s Exhibit 7. Included in State’s Exhibit 7, was a pair of photographs depicting appellant’s front and side view taken on November 13, 1972. As noted above State’s Exhibit 8, the pen packet regarding the second alleged prior conviction, contained two more photographs of appellant, depicting front and side views, taken on November 30, 1979. Since the person convicted in State’s Exhibit 7 was proven to be appellant through the use of fingerprints, clearly the jury had the capability to compare the photographs contained in State’s Exhibit 7 and State’s Exhibit 8 and come to the conclusion that the photographs depicted the same individual, the appellant. We find that there was clearly sufficient evidence before the jury to show that the person convicted in State’s Exhibit 7 was the same person convicted in State’s Exhibit 8.

To the extent that Daniels, Cain, Gollin, or any other case can be read as holding that there are exclusive manners of proof of a defendant’s identity as to prior felonies used for enhancement, they are overruled. Each case is to be judged on its own individual merits. This is not to say that there are not preferred methods of proving identity with respect to enhancement allegations. But, where as in the instant case, the proof, though unorthodox, was clearly sufficient, no error will be found. Compare White v. State, 677 S.W.2d 683 (Tex.App.-Beaumont 1984, no petition).

The State’s motion for rehearing is granted, the judgment of the Court of Appeals is reversed and the case is remanded to the Court of Appeals for consideration of appellant’s remaining grounds of error.

ONION, P.J., and CLINTON, TEAGUE and MILLER, JJ., dissent.

. Our reading of Dorsett v. State, 396 S.W.2d 115 (Tex.Cr.App. 1965), the DWI case relied on by the Court in Gollin, shows that notwithstanding the language in Gollin, there was no photograph of Dorsett introduced into evidence. Rather, DPS records were introduced into evidence showing that a driver’s license was issued to an individual by the name of Lathern Dorsett. The records further described Lathern Dorsett as a "White male; blue eyes; blonde hair’ 165 pounds; 5'10"; born June 2, 1929.” This Court, recognizing that the jury had the opportunity to observe Dorsett and compare him with the verbal description contained in the DPS records, found the evidence sufficient to identify Dorsett.