Frederick Cornell Harden A/K/A Fredrick Cornell Harden A/K/A Fredrick Harden v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-07-00525-CR ____________________ FREDERICK CORNELL HARDEN a/k/a FREDRICK CORNELL HARDEN, a/k/a FREDRICK HARDEN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 97958 MEMORANDUM OPINION A jury convicted appellant Frederick Cornell Harden a/k/a Fredrick Cornell Harden a/k/a Fredrick Harden of unlawful possession of a firearm by a felon, found that Harden was a habitual felony offender, and assessed punishment at thirty-two years of confinement. In this appeal, Harden raises three issues for our consideration. We affirm. Background Harden was indicted as a habitual felony offender for unlawful possession of a firearm by a felon. See Tex. Pen. Code Ann. §§ 12.42(d), 46.04(a)(1) (Vernon Supp. 2008). The indictment alleged that after being convicted of possession of a controlled substance on June 4, 2003, Harden possessed a firearm before the fifth anniversary of his release from confinement and mandatory supervision. The indictment also contained enhancement paragraphs, which alleged that before commission of the primary offense, Harden had been convicted of three other offenses: felony theft in 1990 and 1992, and escape in 1994. During the guilt/innocence phase of the trial, the State presented the testimony of Carl Rose, an investigator with the Jefferson County District Attorney's Office. Rose testified that he is trained in fingerprint recognition. Rose fingerprinted Harden before trial, and he compared that fingerprint with the fingerprint from State's Exhibit No. 2, a judgment and sentence from the Criminal Judicial District Court of Jefferson County, Texas in cause number 87089, dated June 4, 2003, which reflected a conviction for possession of a controlled substance. According to Rose, Harden's fingerprint matched the fingerprint from State's Exhibit No. 2. The defense did not object to the admission of State's Exhibit No. 2 into evidence. During the punishment phase, Harden pled "not true" to the enhancement paragraphs. The State again offered testimony from Rose. Rose testified that he had reviewed State's Exhibits 5 and 6, which consisted of pen packets that contained Harden's fingerprints and photographs of Harden. Rose explained that he had compared the fingerprint he took from Harden with the fingerprints contained in State's Exhibits 5 and 6, and the fingerprints belonged to Harden. In addition, Rose testified that the photographs in State's Exhibits 5 and 6 were "[d]efinitely" Harden. After taking Rose on voir dire, defense counsel lodged the following objection: Your Honor, at this time we would object to State's Exhibit Nos. 5 and 6. Basically -- let's take one at a time. On State's Exhibit No. 5, the fingerprints taken under State's Exhibit No. 5 for the penitentiary packet on the end of the document does not have a fingerprint on the judgment and sentence to compare it to. Also, Your Honor, there's no identifiers as far as Social Security number, classification number, anything of that nature. There's just one number off to the left of it before the word "race." The signature down at the bottom states it's from a Frederick Cornell -- and it says "Warden." If the Judge will look at the signature, it's not "Harden." It's "Warden" on this one. Therefore, we'd say that the identification purposes of the certification is not correct on those as far as that being the same person. On State's Exhibit No. 6, I have basically the same objection as far as Cause No. 12892 out of Grimes County, the 12th Judicial District. In that one, there is no fingerprint. There is a partial little smudge . . . below the words "right thumbprint." It is not of comparable value. Therefore, it could not be compared to the end of State's Exhibit No. 6. The signature on State's Exhibit No. 6 does have Frederick Cornell 'Harden" as not [sic] compared to State's Exhibit No. 5, which has Frederick "Warden." Also, Your Honor, there's no certification on Cause No. 12892 out of Grimes County stating that this is, in fact, a certified copy that was presented to the penitentiary. It only has a "duplicate" stamp on it and some writing down at the bottom which is not identifiable and cannot be testified to. The judgment and sentence out of Jefferson County does not have a certification on it either, and we would object to it on all those grounds. The trial court overruled defense counsel's objections and admitted State's Exhibits 5 and 6 into evidence. On redirect examination, Rose testified that State's Exhibit 5 contains a judgment, dated October 19, 1990, that adjudicated guilt in cause number 52046 from the 252nd District Court of Jefferson County, Texas, for the offense of felony theft. In addition, Rose testified that State's Exhibit 6 contains a judgment from the Criminal Judicial District Court of Jefferson County, Texas, dated April 13, 1992, that indicates a conviction for felony theft. Rose further testified that State's Exhibit 6 also contained a judgment from the 12th Judicial District Court of Grimes County, Texas, dated April 4, 1994, that indicates a conviction for the felony offense of escape. Rose explained that each pen packet contains its own set of fingerprints, and that the prison system certified that the documents show Harden was imprisoned for the offenses. The jury found the enhancement paragraphs true and assessed punishment at confinement for thirty-two years. Issue One In his first issue, Harden contends the evidence supporting the enhancements was legally and factually insufficient. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). In reviewing a factual sufficiency challenge, we view all of the evidence in a neutral light, and we will set aside the verdict only if the conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006). "To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction. No specific document or mode of proof is required to prove these two elements." Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007) (footnote omitted). The State need not produce a certified judgment to prove a defendant's prior criminal record. Id. at 922. The State introduced documentary proof that contains sufficient information to show both the existence of a prior conviction and the defendant's identity as the person convicted. Id. at 921-22. A pen packet certified by the Texas Department of Criminal Justice is self-authenticated for purposes of Rules 901 and 902 of the Texas Rules of Evidence. Tex. Code Crim. Proc. Ann. art. 42.09, § 8(a), (b) (Vernon Supp. 2008); see also Tex. R. Evid. 901, 902. In the case sub judice, the State introduced into evidence as Exhibits 5 and 6 pen packets that were certified by the custodian of records from the Texas Department of Criminal Justice--Correctional Institutions Division. Both exhibits 5 and 6 contained fingerprints, and the State's fingerprint expert testified that he had compared those fingerprints to the ones he took from Harden, and that all of the fingerprints belonged to Harden. Exhibits 5 and 6 also contained copies of judgments reflecting two convictions for felony theft. The first judgment was dated October 19, 1990, and the second judgment was dated April 13, 1992. In addition, Rose testified that he had examined the photographs contained in State's Exhibits 5 and 6, and that the photographs were of Harden. After reviewing the record in the light most favorable to the trial court's ruling, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Harden was the same person previously convicted as alleged in the enhancement paragraphs. See Salinas, 163 S.W.3d at 737. In addition, after reviewing all of the evidence in a neutral light, we cannot say that the verdict is clearly wrong or manifestly unjust because it is contradicted by the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-17. Therefore, we overrule issue one. Issue Two In his second issue, Harden argues that the trial court erred by admitting a pen packet during the punishment phase that included a conviction that had been used during the guilt/innocence phase. During the guilt/innocence phase, when the State offered State's Exhibit 2, which contained the 2003 conviction for possession of a controlled substance, defense counsel did not object. In addition, during the punishment phase, when the State offered Exhibit 6, which also contained the 2003 conviction, defense counsel did not object on the basis that Exhibit 6 contained a conviction duplicative of that in Exhibit 2. Harden's trial objection does not comport with his issue on appeal. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996); Elliot v. State, 56 S.W.3d 780, 781 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (An issue on appeal must comport with a proper trial objection.). Accordingly, we overrule issue two. Issue Three In his third issue, Harden asserts that the trial court erred by admitting the two pen packets at punishment because they "are inadmissible and irrelevant as they contain nothing to connect appellant to the alleged prior convictions." In our discussion of issue one, we determined that legally and factually sufficient evidence, including the pen packets, supported the jury's verdict on punishment. Additionally, the objections lodged by defense counsel to the two pen packets at issue, State's Exhibits 5 and 6, do not comport with the issue he now asserts on appeal. Counsel's trial objections focused on the lack of certifications and fingerprints on the judgments themselves; however, counsel did not object to the fingerprints or the photographs contained elsewhere in the pen packets and the comparison of those fingerprints to the fingerprints Rose obtained from Harden. See Wilson, 71 S.W.3d at 349; Bell, 938 S.W.2d at 54; Elliot, 56 S.W.3d at 781. Therefore, we overrule issue three and affirm the trial court's judgment. AFFIRMED. __________________________________ CHARLES KREGER Justice Submitted on January 27, 2009 Opinion Delivered March 4, 2009 Do not publish Before McKeithen, C.J., Gaultney and Kreger, JJ.