in Re Charlton Reed Tipton

IN THE TENTH COURT OF APPEALS No. 10-08-00085-CR In re Charlton Reed Tipton Original Proceeding MEMORANDUM Opinion Charlton Reed Tipton seeks a writ of mandamus compelling Respondent, the Honorable James E. Morgan, Judge of the 220th District Court of Hamilton County, to set aside an order and a supplemental order authorizing the withdrawal of funds from Tipton’s inmate trust account for payment of court costs, attorney’s fees, and fines assessed in his criminal prosecution. Respondent has signed an order setting aside the orders which Tipton challenges in this proceeding. Therefore, we dismiss Tipton’s petition as moot. See In re Metropolitan Lloyds Ins. Co. of Tex., 227 S.W.3d 785, 786 (Tex. App.—Dallas 2006, orig. proceeding); In re Jaramillo, 164 S.W.3d 774, 775 (Tex. App.—Texarkana 2005, orig. proceeding). PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissents. A separate opinion will not issue. He notes, however, that dismissal is premature because we have not notified Tipton of our intent to dismiss this proceeding because it may now be moot. The irony is that Tipton brought this proceeding because he did not receive notice to which he thought he was entitled. Now he prevails without notice to which the rules make it clear that he is entitled.) Petition dismissed Opinion delivered and filed April 2, 2008 Do not publish [OT06] Tyrone Turner appeals his convictions by a single jury in two cases of aggravated sexual assault of a child. The trial court, finding four enhancement paragraphs true, assessed his punishment in each cause at life in the Texas Department of Criminal Justice, Institutional Division, with the sentences to run consecutively. Turner presents eight points on appeal. In the first six points, he contends in several different ways that the evidence is legally and factually insufficient to support the trial court’s finding that he had previously been convicted of the offenses alleged in the enhancement portion of the indictments because the offense numbers in the pen packet admitted into evidence did not match the offense numbers alleged in the indictment. He urges in point seven that the judgment in his case violates his constitutional protection against double jeopardy because the enhancement allegations in the indictments allege the same prior conviction twice, and that the judgment twice uses the same prior conviction to enhance his punishment. In point eight, he asserts that the trial court erred by finding enhancement paragraphs two and four of the indictment true because they are duplicates of the same conviction. We affirm. In the first six points, Turner presents the following contentions: (1) the trial court erred in finding the enhancement paragraphs true because the State presented no evidence to prove them, in that the cause numbers of the enhancement paragraphs are not the same cause numbers as the convictions in the pen packet introduced as evidence; (2) the trial court erred in finding the enhancement paragraphs true because the evidence is legally insufficient to prove the enhancement paragraphs, in that the cause numbers of the enhancement paragraphs are not the same cause numbers as the convictions in the pen packet introduced as evidence; (3) the trial court erred in finding the enhancement paragraphs true because the evidence is factually insufficient to prove the enhancement paragraphs, in that the cause numbers of the enhancement paragraphs are not the same cause numbers as the convictions in the pen packet introduced as evidence by the State; (4) the trial court erred in admitting the penitentiary packet over defense objection because the evidence is legally and factually insufficient to connect him to the prior offenses; (5) the trial court erred in finding the enhancement paragraphs true because the evidence is legally and factually insufficient to link him to the prior offenses; and (6) the trial court erred, in sentencing him to life imprisonment under section 12.42(c) of the Texas Penal Code, because the State failed to prove the enhancement paragraphs. In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). 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 v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence without the prism of the "in the light most favorable to the prosecution" construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). We must also remain cognizant of the factfinder’s role and unique position—one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). The enhancement paragraphs of each of the two indictments alleged the following prior convictions: (1) convicted August 8, 1994, in the 219th District Court of Collin County, of offense of Indecency with a Child by Sexual Contact, Cause Number 219-61HM-85; (2) convicted August 8, 1994, in the 219th District Court of Collin County, of offense of Indecency with a Child by Sexual Contact, Cause Number 219-62HM-85; (3) convicted August 8, 1994, in the 219th District Court of Collin County, of offense of Indecency with a Child by Sexual Contact, Cause Number 219-63HM-85; (4) convicted August 8, 1994, in the 219th District Court of Collin County, of offense of Indecency with a Child by Sexual Contact, Cause Number 219-62HM-85; and (5) convicted August 8, 1994, in the 219th District Court of Collin County, of offense of Aggravated Assault of a Child, Cause Number 219-80108-94. The pen packet introduced into evidence at trial contained judgments of conviction showing the following: (1) convicted August 19, 1994, in the 219th District Court of Collin County, of felony offense of Indecency with a Child, Cause Number F-85-061-HM; (2) convicted August 19, 1994, in the 219th District Court of Collin County, of felony offense of Indecency with a Child, Cause number 219-F85-062-HM; (3) Convicted August 19, 1994, in the 219th District Court of Collin County, of felony offense of Indecency with a Child, Cause Number F85-063-HM; and (4) convicted August 19, 1994, in the 219th District Court of Collin County, of felony offense of Indecency with a Child, Cause Number 219-80108-94. The pen packet contained both the fingerprints and a photograph of one Gerald Tyrone Turner, the subject of the pen packet. In each case, the trial court found the first four enhancement paragraphs true, which included a duplication of Cause Number 219-F85-062-HM, but did not include Cause Number 219-80108-94. Turner contends that the evidence is legally and factually insufficient to support the trial court’s finding of true to the enhancement paragraphs because the cause numbers in the indictment do not exactly match the cause numbers in the pen packet introduced into evidence. As noted above, the indictment alleged cause number 219-61-HM-85, while the proof showed conviction in the 219th District Court in cause number F-85-061-HM; the indictment alleged cause number 219-62-HM-85, while the proof showed conviction in the 219th District Court in cause number F85-062-HM; and the indictment alleged cause number 219-63-HM-85, while the proof showed conviction in the 219th District Court in cause number F85-063-HM. The State waived prior conviction number 219-80108-94. It is not necessary to allege prior convictions for enhancement purposes with the same particularity that must be used in charging the primary offense. Earl v. State, 870 S.W.2d 669, 671 (Tex. App.—Houston [1st Dist.] 1994, no pet.). The purpose of the enhancement allegations is to give the defendant notice of the earlier convictions so that he or she can prepare a defense. Id. If the proof of prior convictions fails to correspond with the enhancement allegations, the punishment cannot be legally enhanced. Id. However, a variance between the allegations in the indictment (which includes the enhancement paragraph) and the proof presented at trial is material and fatal only if the defendant shows surprise or prejudice. Id. Here, Turner has not referred us to any evidence showing he was surprised or prejudiced by the variance in the cause numbers. Turner primarily relies upon the cases of Atwood v. State, 972 S.W.2d 880 (Tex. App.—Texarkana 1998, pet. ref’d); Weaver v. State, 56 S.W.3d 896 (Tex. App.—Texarkana 2001), rev’d, 87 S.W.3d 557 (Tex. Crim. App. 2002), cert. denied, 123 S. Ct. 1491 (2003); and Waits v. State, 56 S.W.3d 894 (Tex. App.—Fort Worth 2001, no pet). We find these cases to be distinguishable. In Atwood, the State totally failed to prove a misdemeanor conviction needed for enhancement of the punishment. Atwood, 972 S.W.2d at 882. There was not a total failure of proof in the case at bar. In Weaver, the court of appeals held that the State failed to prove an essential element of the offense of felony D.W.I. when it did not present evidence to the jury at the guilt-innocence phase of the trial of a prior D.W.I. conviction within ten years of the primary offense. Weaver, 56 S.W.3d at 899. It held that the trial court erred by admitting two prior convictions to the jury that were more than ten years old. Id. The Texas Court of Criminal Appeals reversed, holding that the trial court did not err in admitting the two convictions that were more than ten years old where the State proved before the court that the defendant was convicted within the ten-year period of another D.W.I. Weaver, 87 S.W.3d at 561-62. Neither Weaver opinion is inconsistent with our opinion. In Waits, the court held that the punishment assessed against the defendant was void where it was necessary for enhancement to prove two prior felony convictions, but the evidence showed one prior felony conviction and one prior state jail felony conviction. Waits, 56 S.W.3d at 895-96. In the case at bar, the State presented sufficient evidence to support the trial court’s finding of the prior alleged convictions, and all of the prior convictions are felonies. Turner contends that he was entitled to have the trial court make findings of fact and conclusions of law regarding the factors considered in setting his punishment. However, he presents no argument or authority showing that the trial court was required to make any finding other than “true” or “not true,” and we are not aware of any. Turner also insists that the evidence was insufficient because it did not show that he was the same person who had been convicted of the offenses shown by the pen packet. James Cron, a forensic identification consultant, testified that he compared the fingerprints of the defendant, Gerald Tyrone Turner, with the fingerprints in the pen packet of one Gerald Tyrone Turner, a pen packet that reflected the convictions to which we have previously referred. He indicated that he understood a pen packet to be “that when an individual enters the prison system in Huntsville, they are fingerprinted and the fingerprint—the numbers assigned to them when they enter the prison system is [sic] connected to the cause numbers on their convictions.” He stated that the packet produced is a reflection of the judgments that the individual served time for in the Texas Department of Criminal Justice. He acknowledged that he either could not or did not compare Turner’s fingerprints to any fingerprints on any of the individual judgments of conviction. In asserting that this evidence is insufficient, Turner primarily relies on Zimmer v. State, 989 S.W.2d 48 (Tex. App.—San Antonio 1998, pet. ref’d); Daniel v. State, 585 S.W.2d 688 (Tex. Crim. App. 1979), overruled in part by Littles v. State, 726 S.W.2d 26 (Tex. Crim. App. 1987); Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. App. 1986); and Davila v. State, 930 S.W.2d 641, 653 (Tex. App.—El Paso 1996, pet. ref’d). In Zimmer, the court held that evidence that the defendant’s fingerprints were the same prints as on a jail booking slip when someone with the same name as the defendant was arrested was insufficient to establish that the defendant was the same person as someone of the same name who was previously convicted of the offense alleged for enhancement. Zimmer, 989 S.W.2d at 52. The court noted that a prior conviction alleged for enhancement may be established by certified copies of a judgment and sentence and authenticated copies of the Texas Department of Corrections records, including fingerprints, supported by expert testimony matching them to the known prints of the defendant. Id. at 50. In the case at bar, the trial court’s finding of true was supported by such evidence, in addition to a photograph of the person who had been convicted that the trial court could have compared with Turner. Zimmer supports and is not in conflict with our opinion. The Daniel case had a result similar to Zimmer. Daniel, 585 S.W.2d at 691-92. The court also noted that the proof of a prior conviction alleged for enhancement might be established by certified copies of the judgment, sentence, and record of the Texas Department of Correction records or a county jail, including fingerprints supported by expert testimony matching them to the known prints of the defendant. Id. at 690. Daniel supports and is not inconsistent with our opinion. In Beck, the court held that by not making any objection the defendant waived error concerning the failure to swear in a fingerprint expert or, if he did not, the error was cured when the trial court confirmed an instruction by the defendant’s counsel that the jury could not consider the expert’s testimony. Beck, 719 S.W.2d at 214. As noted in Zimmer, Beck also holds that evidence such as the State presented in the case at bar is sufficient to show the identity of the defendant as the person previously convicted. Id. at 209. Beck also supports and is not inconsistent with our opinion. In Davila, the court found that a pen packet was admissible into evidence where there was expert testimony showing that the defendant’s fingerprints matched those on the pen packet fingerprint card, even though the fingerprint card was not stapled or otherwise physically attached to the packet, because other information on the card linked it to the pen packet. Davila, 930 S.W.2d at 653. The court noted that while authenticated records of the Texas Department of Corrections might be used to provide proof of prior convictions, they are not sufficient on their own to prove those convictions. Id. It stated that additional evidence must be presented showing that the person convicted as related in the pen packet is the same person as the one on trial. Id. The court held that this was accomplished when a fingerprint expert compared Davila’s fingerprints with those in the pen packet. Id. Davila also supports and does not conflict with our opinion. We hold that the evidence presented is sufficient to show that Turner was previously convicted of the offenses alleged for enhancement purposes, and that the trial court did not err by admitting such testimony into evidence. We overrule points one through six. Turner contends in point seven that the judgment in each case violates his constitutional protection against double jeopardy because the same prior conviction was alleged twice in the indictment and the trial court found both allegations true. He asserts in point eight that the trial court erred in finding both allegations true because of the duplication. The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution is not applicable in non-capital sentencing proceedings. Monge v. California, 524 U.S. 721, 724, 118 S. Ct. 2246, 2248, 141 L. Ed. 2d 615, 621 (1998); Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999). While Turner also relies upon the protection against double jeopardy found in article I, section 14 of the Texas Constitution, he presents no argument or authority showing that this section is applicable in non-capital sentencing proceedings. Turner additionally relies upon article I, section 11a of the Texas Constitution, but he fails to assert in what respect his complaint is related to that section. Under section 12.42(c)(2) of the Texas Penal Code, a life sentence is mandatory upon the showing of any one of Turner’s previous convictions that were proved by the State. That being the case, we hold beyond a reasonable doubt that even though there was error in the trial court’s finding true two identical enhancement paragraphs, the error did not contribute to Turner’s conviction or to the punishment assessed and did not affect his substantial rights. The fact that under these circumstances the life sentence was mandatory even without the proof of either of the two duplicitous paragraphs negates Turner’s argument that the error made it more likely that he would receive a more severe sentence. Turner’s suggestion that harm was shown because the trial court could have considered a range of punishment, instead of a mandatory life sentence, is based on the erroneous assumption that none of the enhancement paragraphs was proven. We overrule points seven and eight. The judgment is affirmed. JOHN G. HILL Senior Justice Before Justice Vance, Justice Gray, and Senior Justice Hill (Sitting by Assignment) Affirmed Opinion delivered and filed August 27, 2003 Do not publish [CRPM]